CIHM 
Microfiche 
Series 
(IMonograplis) 


ICIMH 

Collection  de 
microfiches 
(monographles) 


Canadian  Instituta  for  Historical  Microraproductions  /  institut  Canadian  da  microraproductiont  historiquas 


Technical  and  Bibliographic  Notes  /  Notes  techniques  et  bibliographiques 


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D 
D 
D 


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n 


D 


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Coloured  covers  / 
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Covers  damaged  / 
Couverture  endommag^e 

Covers  restored  and/or  laminated  / 
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blanches  ajout^es  lors  d'une  restauration 
apparaissent  dans  le  texte,  mais,  lorsque  cela  dtait 
possible,  ces  pages  n'ont  pas  ^t^  lilm^es. 

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L'Institut  a  microfilnnd  le  meilleur  exemplaire  qu'il  lui  a 
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plaire qui  sont  peut-6tre  unk)ues  du  point  de  vue  bibli- 
ographique,  qui  peuvent  modifier  une  image  reproduite, 
ou  qui  peuvent  exiger  une  modification  dans  la  nf)6tho- 
de  normale  de  filmage  sont  indiquds  ci-dessous. 

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I     I  Pages  damaged  /  Pages  endommag^es 


Pages  restored  and/or  laminated  / 
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D 

r~~n  Pages  discoloured,  stained  or  foxed  / 

LlJ  Pages  dteolor^es,  tachet^es  ou  piqu^es 

I     I  Pages  detached  /  Pages  d^tachies 

[y|  Showthrough / Transparence 

["71  Quality  of  print  varies  / 


D 
D 


D 


Quality  inSgale  de  t'impression 

Includes  supplementary  material  / 
Comprend  du  materiel  suppl^mentaire 

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possible  image  /  Les  pages  totalement  ou 
partiellement  obscurcies  par  un  feuillet  d'errata,  une 
pelure,  etc.,  ont  ^t^  film^es  k  nouveau  de  fa^on  k 
obtenir  la  meilleure  image  possible. 

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discolourations  are  filmed  twice  to  ensure  the  best 
possible  image  /  Les  pages  s'opposant  ayant  des 
colorations  variables  ou  des  decolorations  sont 
film^es  deux  fois  afin  d'obtenir  la  meilleure  image 
possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below  / 

Ce  documertt  est  IWmi  au  taux  de  reduction  indiqu<  cl-dessous. 


lOx 


14x 


18x 


22x 


26x 


30x 


7 


12x 


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32x 


Th«  copy  filmsd  bw  has  b««n  raproducMl  thanks 
to  tho  ganorosity  of: 

Moritttt  Library 
Uniwraity  of  Ottawa 

Tha  imagas  appaaring  hara  ara  ttw  bast  quality 
possibia  eonsidaring  tha  condition  and  laglblllty 
of  tha  original  copy  and  in  Icaapbig  with  tha 
filming  contract  spaciflcationa. 


Original  copiaa  in  printad  papar  covars  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  iaat  paga  with  a  printad  or  iilustratad  impras- 
sion.  or  tha  bacic  covar  whan  appropriata.  All 
othar  original  copies  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illuatratad  impras- 
sion.  and  anding  on  tha  Iaat  paga  with  a  printad 
or  illuatratad  imprassion. 


Tha  last  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  ^^-  (moaning  "CON- 
TINUED"), or  tha  symbol  ▼  (moaning  "END"), 
whichavar  appiias. 


L'axamplaira  film*  fut  raproduit  grica  i  la 
g^nirosit*  da: 

Blblioth«q«M  Mori«Mt 
Univaniti  d'Ottawa 

Laa  imagaa  suivantaa  ont  4t«  raproduitas  avac  la 
piua  grand  aoin.  compta  tanu  da  la  condition  at 
da  la  nattat*  da  l'axamplaira  film*,  at  1% 
eonformiti  avac  laa  conditions  du  contrat  da 
filmaga. 

Laa  axamplairaa  originaux  dont  ia  couvartura  an 
papiar  aat  imprim4a  sont  filmte  an  comman^nt 
par  la  pramiar  plat  at  an  tarminant  soit  par  ia 
damiira  paga  qui  comporta  una  amprainta 
d'Impraaaion  ou  dtllustration,  soit  par  ia  sacond 
plat,  salon  la  caa.  Toua  laa  autraa  axamplairaa 
originaux  aont  filmto  an  commandant  par  ia 
pramiira  paga  qui  comporta  una  amprainta 
dimpraaslon  ou  dlllustration  at  an  tarminant  par 
ia  damiira  paga  qui  comporta  una  talla 
amprainta. 

Un  daa  symbolaa  suivanta  apparaftra  sur  ia 
damlAra  imaga  da  chaqua  microficha,  salon  la 
caa:  ia  symbola  -^  signifia  "A  SUIVRE",  la 
symbols  ▼  signifia  "FIN". 


Maps,  piatas.  charts,  ate.,  may  ba  filmad  at 
diffarant  raduction  ratioa.  Thoaa  too  larga  to  ba 
antiraly  included  in  ona  axposura  ara  filmad 
baginning  in  ttia  uppar  iaft  hand  comar,  iaft  to 
right  and  top  to  bottom,  aa  many  framaa  aa 
raquirad.  Tha  following  diagrama  iilustrata  tha 
mathod: 


Laa  cartas,  planchas,  tablaaux,  ate.,  pauvant  *tra 
filmte  i  daa  taux  da  rMuetion  diff«rants. 
Lorsqua  la  documant  ast  trap  grand  pour  ttra 
raproduit  an  un  saul  ciich*.  il  ast  film*  i  partir 
da  I'angia  sup*riaur  gaucha,  da  gaucha  i  droita, 
at  da  haut  an  baa,  an  pranant  ia  nombra 
d'imagas  n*caasaira.  Las  diagrammas  suivanta 
illuatrant  ia  mithoda. 


1  2  3 


1 

2 

3 

4 

5 

6 

mcaocotFf  hsouition  twt  chaitt 

(ANSI  and  ISO  TEST  CHART  No.  2) 


APPLIED  »VV<3E     In 

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"ocfiMter.   N««   York         1*609       USA 

{'16)   ♦8/  -  0300  -  Phon« 

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I 


Publications  of  the 

Carnegie  Endowment  for  International  Peace 

Division  of  International  Law 

Washington 


i 


^ 


THE  UNITED  STATES  OF  AMERICA: 

A  STUDY  IN  INTERNATIONAL 

ORGANIZATION 


^^^ 


By  the  Author  of  and  Uniform  with  This 
Study  in  International  Organization; 


Judicial  Settlement  of  Controversies  Between 
States  of  the  American  Union 

Cases  decided  in  the  Supreme  Cot^t  of  titc  United  States 
{?  vols.,  4to) 

An  Analysis  of  Cases  decided  in  the  Supreme  Court  of  the  United  States 

(I  tvl.,  4I0) 


I  can  not  refrain  from  asking  your  Lordships  to  consider  how  the  subject  has  been  viewed 
by  our  brethren  in  the  United  States  of  America.  They  carrie.l  the  common  law  of  England 
alona  with  them,  and  jurisprudence  is  the  department  of  human  kiiowledije  to  winch,  as 
pointed  out  by  Hiirkc,  they  have  chielly  devoted  themselves  and  in  which  they  have  chietly 
excelled.     (Lord  i^iimfbcH  in  Kegina  v.  Millit,  to  Clark  &  hmndly.  777.  denti,-d  m  :Sh) 

Sittina  as  it  were,  as  an  international,  as  well  as  a  domestic  trilnmal,  we  apply  Fed- 
eral law,  'state  law.  and  international  law,  as  the  exixencies  of  the  particular  case  niay 
demand.  (t/iiV/  Justkf  f'ulUr  in  Kanias  v.  Colorado,  iSj  imUd  itati-s,  ui,  i4<>-'47,  de- 
cided in  I'A'-'-) 

Confederations  have  existed  in  other  countries  than  .America;  republics  have  been  seen 
elsewhere  than  upon  the  shores  of  the  New  World :  the  representative  system  of  government 
has  been  adopted  in  several  states  of  Europe;  but  I  am  not  aware  that  any  nation  of  the 
b1oI)c  has  hitherto  constituted  a  judicial  power  in  the  same  manner  as  the  .\niericans.  (Alexis 
de  Toaiue-AUe,  Dc  la  Democralie  en  Amirique,  i  Vols.,  iSjs.  I  ol.  I,  p.  15S.) 

The  Supreme  Court  of  the  United  States,  which  is  the  American  Federal  institution  next 
claiming  our  attention,  is  not  only  a  most  interesting  but  a  ^ '.■■'"=»  V"'?',''1T'Z"„  ?n  it^ 

founders  of  the  Constitution The  success  of  this  experiment  has  blinded  men  to    ts 

novelty     There  is  no  exact  precedent  for  it,  cither  in  the  ancient  or  m  the  modern  world. 
{Sir  Henry  :iumiicr  .Maine,  I'opular  Ooiernment,  /*W<,  tt-  .'T-^I'-) 

\merican  experience  has  made  it  an  axiom  in  political  science  that  no  written  constitution 
of  KOTernment  an  \u>pe  to  stand  without  a  paramount  and  indepeiulent  tribunal  to  deter- 
mine its  "instruction  an.l  to  enforce  its  precepts  in  the  last  resort.  This  is  the  great  and 
foremost  duty  cas  by  the  Constitution,  for  the  sake  of  the  Constitution  upon  the  Supreme 
CourTof  the  United k-ites.  (liduard  John  I'helts  The  Cnited  .^UUcs  .Supreme  Court  and 
the  .So-\-r.-i<jiily  of  lite  I'eople.  1S90.  Orations  and  Lsiays.  1901,  pp.  .-ii-jy.) 

The  extraordinary  scope  of  judicial  power  in  this  country  has  accustomed  us  to  see 
the  .  nerauons  o  «overni.^nt  and  .mentions  arising  Ktween _ sovereign  ^tates  submitted  to 
judges   who  appb    the  test   of   conformity  to  established  principles  and   rules  of   conduct 

""U tern's  iTu^rand'troper  to  us  that  the  conduct  of  government  affecting  substantial 
rial  s  and  not  depending  u -on  questions  of  policy,  should  be  passed  upon  by  the  courts 
Xn  occasion  ari^es  It  is  easy,  therefore,  ,or  Americans  to  grasp  the  idea  that  the  same 
w.ien  occasion  arises  is  ,  /'  u^j  ,,.  ,uestions  growing  out  of  the  conduct  of  nations 
Tnd'not  rnvdv?ngc,uLfions''fT.oH'c^  '/•:'.'.'«  X^ot.  AdiaalSeil,e„unt  of  International  Dts- 
pules,  1908,  Addresses  on  Inlemalional  Subjects,  1910,  pp.  15'-^-} 


THE  UNITED  STATES  OF  AMERICA: 

A  STUDY  IN  INTERNATIONAL 

ORGANIZATION 


''S 


BY 


JAMES  BROWN  SCOTT,  A.M.,  J.U.D.,  LL.D. 

Technical  DeU-gatf  of  the  United  States  to  the  Second  Hague  Peace 

Conference,  1907;  Technical  Drlegate  of  the  United  Statef 

to  the  Peace  Conference  at  Parti,  1919. 


"  I  send  you  enclos'd  the  propos'd  new  Federal  Constitution  for  these 
States.  I  was  enuagM  4  Months  of  the  last  Summer  in  the  Convention 
that  form'd  it.  It  is  now  sent  by  Congress  to  the  several  States  for  their 
Confirmation.  If  it  succeeds.  I  do  not  sec  why  you  might  not  in  Europe 
carrv  the  Project  of  good  Henrv  the  4th  into  Kxecution.  by  forming  a 
Federal  Union  and  One  drand  RcpuMick  of  all  its  different  States  & 
Kingdoms:  by  means  of  a  like  Convention;  for  we  had  ninny  Interests  to 
reconcile."  Benjamin  Franklin  to  Mr  Grand.  October  22.  1 787.— PocM- 
mentar\  Histnrv  of  the  Constitution  of  the  United  States  of  America.  Vol. 
ly.  1905.  pp.  34t-i- 


NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN    BRANCH:    35   WEST    32nd   STREET 

London,  Toronto,  Melbourne  and  Bombay 

1920 


VO^c":... 


C.\ 


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COmtGNT  l«M 

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CAKRIOII  IHDOWMINT  rOK  INTttNATIONAI,  rtACI 

WuwuaTcN,  n.  c 


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TO 

ROBERT  BACON 

IN  AFFECTIONATE  ADMIRATION 


PREFACE 


J 


The  United  States  of  America  constitute  a  union  of  States,  "  a  more 
perfect  Union,"  to  use  the  language  of  the  preamble  to  the  Constitution,  than 
that  under  the  Articles  of  Confederation  which  the  Constitution  was  devised 
to  supplant.  On  July  4,  1776,  .  le  thirteen  British  colonies  lying  between  the 
Gulf  of  Mexico  and  Canada,  to  the  east  of  the  Mississippi,  abjured  allegiance 
to  the  British  Crown  and  solemnly  published  and  declared  themselves  to  be 
"  Free  and  Independent  States  "  possessing,  as  the  Declaration  of  Independ- 
ence stated,  "  full  power  to  levy  War,  conclude  Peace,  contract  Alliances,  es- 
tablish Commerce,  and  to  do  all  other  Acts  and  Things  which  Independent 
States  may  of  right  do."  Availing  themselves  of  their  right  to  contract  alli- 
ances, they  entered  into  "  a  firm  league  of  friendship  with  each  other,  for  their 
common  defence,  the  security  of  their  liberties,  and  their  mutual  and  general 
welfare,  binding  themselves  to  assist  each  other,  against  all  force  offered  to,  or 
attacks  made  upon  them,  or  any  of  them,  on  account  of  religion,  sovereignty, 
trade,  or  any  other  pretence  whatever."  "  Stiling  "  this  confederation  "  The 
United  States  of  America,"  and  declaring  in  explicit  terms  that  "  each  State 
retains  its  sovereignty,  freedom  and  independence,  and  every  power,  jurisdic- 
tion and  right,  which  is  not  by  this  confederation  expressly  delegated  to  the 
United  States,  in  Congress  assembled,"  the  Articles  of  Confederation  creating 
this  union  of  the  States  were  approved  by  their  delegates  in  Congress  Novem- 
ber 15,  1777,  and  ratified  by  the  last  of  the  thirteen  States  on  March  1,  1781. 

The  firm  league  of  friendship  failing  of  the  purposes  for  which  it  was  cre- 
ated by  the  delegates  of  the  States  in  Congress  assembled  and  ratified  by  the 
States  themselves,  the  Congress  on  February  21,  1787,  resolved  it  to  be  expe- 
dient that  "  on  the  second  Monday  in  May  next,  a  Convention  of  Delegates, 
who  shall  have  been  appointed  by  the  several  States,  he  held  at  Philadelphia,  for 
the  sole  and  express  purpose  of  revising  the  Articles  of  Confederation,  and  re- 
porting to  Congress  and  the  several  Legislatures,  such  alterations  and  provi- 
sions therein,  as  shall,  when  agreed  to  in  Congress,  and  confirmed  by  the  States, 
render  the  federal  Constitution  adequate  to  the  exigencies  of  Government,  and 
the  pres.;rvation  of  the  Union."  In  pursuance  of  this  resolution  the  delegates 
of  twelve  of  the  States  met  in  convention  in  the  month  of  May  and  adjourned 
on  Septemlier  17,  1787,  having  drafted  a  constitution  for  a  more  perfect  Union 
of  the  United  States  which,  ratified  by  the  thirteen  original  States  in  the  course 
of  the  ensuing  three  years,  today  controls  the  conduct  of  forty -eight  States  and 


PKEFACE 


which  in  practice  as  well  as  in  theory  has  proved  adequate  to  the  "  exigencies 
of  government  and  the  preservation  of  the  Union." 

In  the  belief  that  the  experience  of  the  American  States  proclaimed  to  be 
free  and  independent  in  their  Declaration  of  Independence,  each  retaining  "  its 
sovereignty,  freedom  and  independence  "  under  the  Articles  of  Confederation, 
would  be  of  value  in  any  attempt  to  strengthen  that  larger  union  of  States 
which  we  call  the  Society  of  Nations,  the  undersigned  has  ventured  to  treat 
within  the  compass  of  a  volume  some  of  the  international  problems  met  and 
solved  by  the  framers  of  a  more  perfect  Union  under  the  caption  of  "  The 
United  States  of  America:  A  Study  in  International  Organization." 


Washington.  D.  C. 
November  ii,  ipiS. 


James  Brown  Scott. 


PosTscRiPTUM.  Afay  ii,  igso.—  Absence  from  the  country  and  difficulties 
in  printing  have  delayed  the  appearance  of  the  present  volume.  The  text, 
however,  speaks  from  Armistice  Day.  1918. 

Two  additions  of  a  later  date  have  been  made  in  the  extracts  prefixed  to 
chapters:  the  first  is  the  text  of  the  settlement  of  the  controversy  between 
\'irginia  and  West  Virginia  (Chapter  XIII) ;  the  second  is  Mr.  Root's  defini- 
tion of  a  justiciable  question  (Chapter  XX).  The  text  of  the  Eighteenth 
Amendment  to  the  Constitution  of  the  United  States  as  printed  in  the  Appendix 
has  also  been  added. 

I  have  left  untouched  the  dedication  to  my  beloved  friend,  Robert  Bacon, 
whose  noble  life  ended  on  May  29,  1919. —  J.  B.  S. 


TABLE  OF  CONTENTS 


CHAPTER  I 

Rise  or  the  Idea  c  7  Union 

The  Mayflower  Compact 3 

Early  plans  of  union 5 

New  England  Confederation 5 

William  Penn's  "  Scheam  " 9 

Benjamin  Franklin's  plan U 

The  two  views  —  imperial  and  colonial IS 

Foresight       IS 

Dr.  Franklin's  second  plan    . 16 

CHAPTER  II 

Independence  Declased 

The  fundamental  right 22 

Colonial   view 22 

Imperial  view 22 

A  Continental  Congress 23 

Declaration  and  resolves 24 

An  association 26 

Another  declaration  and  a  petition 27 

The  notion  of  independence 29 

The  final  step 29 

The  Declaration  signed  and  proclaimed 30 

Its  political  philosophy 3I 

Monroe's  conception  of  the  results 33 

A  new  body  politic 34 

Our  first  and  only  ally 34 

Origin  of  the  doctrines j^ 


CHAPTER  III 

A  Confederation  or  Sovereign  States 

Mr.  Dickinson's  plan 40 

A  United  States  Congress 40 

Large  and  small  States 41 

The  two  forms  of  the  Articles 41 

Nature  of  the  Union 42 

Powers   renounced 42 

Powers  of  Congress 43 

Peace  and  war 43 

Congress  with  appellate  jurisdiction 44 

Suggestion  of  a  judiciary 45 

Defects 45 

xi 


XII  TABLE  OF  CONTENTS 

FACI 

Excelleives 46 

International  significance 47 

James  Madison's  summary  of  the  weakness 47 

Personal    interests 52 

Sovereignty 52 

Mr.  Madison's  view  of  public  officers 53 

Dissatisfaction 53 

Four  proposals  that  failed S3 

Economic  troubles 54 

Coercion  of  States 55 

Private  initiative 55 

Convention  at  Annapolis 56 

Another  convention  proposed 56 

Congressional  approval 57 

Union  of  sovereign  States 58 

CHAPTER  IV 

Early  Backgrounds  of  the  American  Constitution:  The  Trading  Companies 

Colonial  charters 64 

Genesis  of  authority  of  Supreme  Court  in  questions  of  constitutionality 65 

Two  kinds  of  charters 66 

Corporations 66 

Bv-laws          67 

Development  of  trading  companies 68 

Spread  to   America 70 

A  second  charter 71 

A  third  charter 72 

Court  and  assembly 72 

Great  and  general  courts 73 

A  representative  assembly 74 

A  forecast  of  American  liberty 74 

Ratification  required 75 

Two  houses        76 

Distinction  between  North  and  South 77 

The  Plymouth  Company 73 

Growth  of  representative  institutions 82 

Virginia  and  Massachusetts  Colonies  compared 83 

New  instruments  of  government  reverted  to  charters 84 


CHAPTER  V 

Further  Colonial  Precedents 

"  Once  an  EnKlishman  always  an  Englishman  " 90 

Relation  of  luiglish  law  to  Colonies 90 

Rights  of  conquest  v.  rights  of  discovery 91 

Blackstone's    interpretation 9I 

Rights  of  discovery  the  true  basis 92 

Blankard  v.  Galdy 92 

Common  law  of  England  followed  colonists 93 

Colonial  statutes 97 


,3 

m 


3 

•-a 


TABLE  OF  CONTENTS  XUI 

FAGI 

Conflict  of  interesti ^ 

Prerogatives  of  the  Crown ^ 

Lords  Commissioners  of  Trade  and  Plantations 99 

Committee  for  Hearing  Appeals 100 

Three  kinds  of  appeals  from  Colonial  courts 100 

Precedent  for  the  power  of  the  Supreme  Court  over  Legislatures 101 

Suit  of  a  citizen  v.  a  State 102 

Holden  and  Green  petition 102 

Further  judicial  precedents 108 

Boundary  dispute  between  New  York  and  New  Jersey 109 

From  negotiation  to  judicial  procedure 109 

Debt  to  litigious  Rhode  Island 118 

Justice  to  the  small  State 118 

Legal  controversies  over  Colonial  laws 119 

Another  precedent  for  granting  power  of  Supreme  Court  to  declare  legislative  acts  un- 
constitutional      121 

Penn  v.  Lord  Baltimore 12^ 

A  political  dispute  may  become  justiciable 125 


CHAPTER  VI 

ESTABUSHMENT  OF   STATE  CONSTITUTIONS 

Impending  revolution 129 

Desire  to  prevent  anarchy 129 

Recommendation  of  Congress I'O 

American  political  background  in  1787 131 

Influence  of  charters 131 

The  three  branches  of  government 132 

Sovereignty  vested  in  the  people '3j 

A  social  and  a  political  compact 134 

Compact  a  fundamental  law 133 

Revenue   bills 136 

Governor's   signature 136 

Legislative  powers 137 

Executive  powers         138 

Judicial   powers 138 

Source  of  law 139 


CHAPTER  VII 

The  Federal  Convention  :  An  International  Conference 

Demands  of  commerce  and  navigation 145 

May,   1787 147 

Large  and  small  States 148 

Organization  of  the  Federal  Convention 148 

An  international  conference 149 

Instructions  to  delegates 150 

Committee  on  rules  and  orders 153 

International  aspects  of  tlie  Convention 155 

Opening  of  the  Convention 156 

Mr.  Randolph':,  filtecu  resolutions 153 

The  four  groups 159 


Xi»  TABLE  or  CONTENTS 

Change  of  purpose 150 

A  union  of  free  Sutes !    !     .     !  161 

The  word  "  national  " 152 

Other  "plans" .     .  163 

National  v.  federal  government I54 

Coercion  of  States I55 

Enumeration  of  general  powers 15S 

International  law  in  the  Constitution 167 

Government  of  laws  and  not  of  men Igg 

Scat  of  government 16g 

Government  of  limited  powers ]5g 

CHAPTER  VIII 

CUtATION  or  THE  FEDERAL  XjtGISLATinO 

The  spirit  of  compromise 172 

The  two  branches  of  the  legislature 172 

Questions  of  representation I73 

Large  and  small  States .174 

Equality  of  States 175 

The  New  Jersey  plan I77 

The  Connecticut  proposal _  I79 

Diversity  of  views Igi 

Victory  of  the  smaller  States '  lg5 

The  first  great  compromise Ig7 

The  second  compromise 137 

Grant  of  legislative  power ign 


CHAPTER  IX 

Creation  of  the  Executive 

A  single  executive J55 

Term  of  office '              155 

Electoral  system '   ^06 

President's  oath  of  office !     !     '  197 

His  great  powers "     .'     '  197 

Treaties •     •     . 

A  c  'ock  upon  the  legislature 200 

Execuf:   ->  and  judicial  vetoes 202 

Laws  operate  on  individuals 202 

The  use  of  force  against  a  State !     .     !  203 


CHAPTER  X 

The  First  Permanent  Tribunal  or  the  States 

Voluntary  self-denials,  including  disarmament 2IO 

Diplomatic  and  military  settlements !  '.     '  210 

Another  kind  of  settlement !     '  '     '  211 

Courts  of  the  Confederated  States '  '     '  211 

International   questions 21? 

International  implications  of  the  Confederate  judiciary 212 


TABLE  OF  CONTENTS  XT 

Lessons  of  the  State  courts ^Ij 

Trial  of  piracies  and  felonies 214 

The  first  federal  tribunal 215 

First  case  of  appeal 218 

Con.-ressional  Committee  on  Appeals 218 

The  case  of  The  Active 220 

Congressional  resolutions  —  the  relation  of  States 221 

CHAPTER  XI 

V 

Temporary  Judicial  Commissions 

Nature  of  the  commissions 229 

Influence  of  Privy  Council 230 

Pennsyhania  v.   Connecticut 231 

Two  other  cases 234 

Significance  of  the  temporary  tribunals 238 

Other  appeals  to  Congress 238 

Dispute  involving  the  existence  of  a  State 238 

Pennsylvania  v.   Virginic 241 

Congress  refuses  to  appoint  a  court 242 

CHAPTER  XII 

CRBAnoN  or  THE  Supreme  Coukt 

Necessity  for  a  common  judiciary 247 

Problem  of  sovereignty 248 

Differences  of  opinion 249 

The  two  plans 249 

The    Virginian    plan 250 

The  New  Jersey  plan ^55 

Question  of  appointment  of  judges 257 

Committee  of  Detail 260 

Draft  proposals 261 

CHAPTER  XIII 

PROtOTYPE  OF  A  COURT  OF  INTERNATIONAL  JUSTICE 

Questions  arising  under  treaties 268 

How  political  questions  become  judicial 270 

Arbitration   considered 270 

Original  and  appellate  jurisdiction 272 

Impeachment 272 

Powers  of  the  Court  .     .^ 274 

The  supreme  law  of  the  land  276 

The  question  of  sanction 279 

Coercion  of  law  ■■.  coercion  of  force 279 

CHAPTER  XIV 
The  Admission  of  New  States 

The  Northwest  Ordinance 286 

Compact  between  people  of  States  and  Northwestern  Territory 288 

Attitude    of    large    States '.     .     .        291 


XVi  TABLE  OF  CONTENTS 

FAQI 

Virginim  relinquithet  claim Xi 

New  States  on  equality  with  old 294 

Government  of  the  territoriei 295 

CHAPTER    XV 
Amendments  and  Rahtication 

Provisioni  for  amendment 299 

Representation  of  small  States  not  subject  to  amendment 300 

Methods  of  amendment 300 

A  system  of  double  constitutions 302 

The  power  to  amend 304 

Ratification 305 

Discussion  of  the  mode  of  ratification 30S 

SovcreiRn  people 308 

The  spirit  of  the  ratifications 309 

Diftictilties  of  ratification 312 

Contest  in  New  York 314 

Tht  Federalist 315 


CHAPTER  XVI 

Government  Set  Up:  Amendments 

Per  interim 321 

The  new  Government  begun 322 

Amendments  move<l 323 

Demand  for  a  Bill  of  Rights '324 

Relation  of  States  to  the  I'nion 325 

Amendments  before  the  Senate .'  326 

Powers  not  delegated  are  reserved  to  the  States 328 

Value  of  the  amendments 33") 

State  conventions 331 

The  first  ten  amendments 331 

Difficulties   overcome 332 

The  sovereignty  of  the  States 333 

The  division  of  sovereign  powers 334 


CHAPTER  XVn 

The  Xature  of  Ji  dicial  Power 

The  influence  of  Montesquieu 341 

Limitation  of  itowers 342 

Con^fress  defines  extent  l)ut  not  nature  of  the  Court's  power 342 

Judicial  power  defined  by  Court  itself 343 

Influence  of  English  common  law        343 

English  cases  on  the  judicial  power 344 

An  American  case 349 

Court  can  pass  on  constitutionality  of  a  legislative  act 349 

Extra  judicial   duties    .  350 

Powers  of  Court  strictly  judicial 353 


TABLE  or  CONTENTS  XVli 

rAOi 

Further  diitinction  between  judicitt  and  other  powers JS4 

Appellate  jurisdiction 357 

Original   jurisdiction 358 

The  Court  may  compel  individuals  but  not  States  to  appear 359 

Sovereignty  of  States  protected 359 

Separation  of  powers 360 

Finality  of  fhe  Court's  decree 360 

Court's  relation  to  the  Government  and  to  the  States 369 


CHAPTER  XVIII 

POWnS  OF  THE  SUPRIME  COURT 

Determination  of  constitutionality 374 

Powers  purely  judicial 375 

Political  contrasted  with  judicial  powers 376 

Judicial  power  as  to  treaties 378 

President's  rights  under  international  law 382 

CHAPTER  XIX 

Extent  and  Exebcise  or  JuoiaxL  Power 

The  question  of  extent 398 

Court  defined ■WO 

The  word  "  supreme  " 400 

Finality 400 

Jurisdiction 400 

Determination  of  jurisdiction 401 

"  Judiciary  Act " 402 

"  Nature  and  extent "  determined 405 

The  liabilitj-  of  States 410 

How  cases  may  arise  in  law  and  equity 412 

Is  judicial  power  concurrent  or  exclusive? 413 

Confusion  over  political  v.  judicial  questions 418 

How  political  questions  become  judicial 420 

Application  to  Society  of  Nations 424 

CHAPTER  XX 

Case  —  Controversy  —  Surr 

Supreme  Court  functions  in  cases  only 427 

"  Case  "  defined 427 

"  Suit  "  defined 428 

Cases  and  controversies 429 

International  "case" 431 


""S 

i 


CHAPTER  XXI 

Judicial  Powers  and  Their  Relation  to  Law  and  EQurrv,  to  Admiralty,  Maritiui 

AND  International  Law 

Definition  of  "  law  "  and  "  equity  " 438 

Influence  of  English  terminology 433 


''viii  TABU  or  contents 

Blackttonc  and  Vattel '4J9 

International  law  the  common  law  of  nation* !    !     .'     !  439 

Law  and  equity .'.".'!.*'        440 

Common  law  limited  to  civil  caiei !     !     !        441 

Common  law  applicable  in  case*  covered  by  ipccial  Icgiilative  act 442 

Interpreution  of  term» .     .        442 

Admiralty  and  maritime  juritdiction  included 447 

An  International  Court  of  Priie 447 

CHAPTER  XXII 
Immunity  of  Statu  and  Nations  fmm  Suit 

Suits  against  States 453 

Coercion  of  States !     !  453 

Judicial  power  over  States 453 

Consent  to  be  sued _  aia 

Sovereignty  not  always  an  exemption 455 

Suit  without  consent  inconsistent  with  sovereignty 457 

Waiving  of  sovereignty 457 

A  plaintiff  sovereign  relinquishes  a  degree  of  sovereignty ^()Z 

The  sovereign  becomes  subordinate  to  law 454 

Further  renunciation  of  immunity  from  suit  by  a  sovereign  power 464 

A  State  may  sue  a  Sute .     .     .  46S 

CHAPTER  XXIII 

A  More  Pbifect  Society  op  Nations 

The  Kreat  problem 4^7 

A  possible  solution 4^ 


APPENDIX 

A.  Plans  of  Union  for  the  Colonies  and  the  States  of  Notrn  America 

I.    The  New  England  Confederation  of  1643 471 

II.    William  Peim's  plan  for  a  union  of  the  Colonies,  February  8.  1698 476 

HI.    Benjamin  Franklin's  plan  for  a  union  of  the  several  Colonies  adopted  at  Albany, 

July  10.  1754 477 

IV.    Benjamin  Franklin's  Sketch  of  Articles  of  Confederation  read  before  Congress, 

June  21,  1775 488 

V.    The  Declaration  of  Independence,  July  4,  1776 ...  492 

VI.    Articles  of  Confederation  adopted  by  Congress,  November  15,  1777,  ratified  by 

the  last  of  the  thirteen  States,  March  1,  1781 494 

VII.    The  Constitution  of  the  United  States  adopted  September  17,  1787,  in  effect  from 

and  after  March  4,  1789 502 

B.  An   Ordinance  for   the  Government  of  the  Territory  of  the  United 

States  Northwest  of  the  River  Ohio 514 

C      DoClME.NTS   FROM   WhICH   THE  CoNSTITUTKN   WAS  EvOLVED 

I.    Text  of  Mr.  Randolph's  Resolutions,  presented  to  the  Convention  May  29,  1787  .  520 
H.    Outline  of  the  Pinckney  Plan  presented  to  the  Convention  May  29.  1787     ,     ,     ,522 


TABLE  OF  CONTKNTB  XIX 

III.  Report  of  the  Committer  o<  the  Whole  on  Mr.  Randolph's  propoiitioni,  June  U, 

1787 524 

IV.  Text  of  the  New  Jer»ey  Plan,  moved  by  Mr   Patterton  June  15,  1787         .  .525 
V.    Alexander  Hamilton'!  sketch  of  a  Government  for  the  I'nited  States,  presented 

June  18,  1787 527 

VI.     Mr.  Kandolph's  Resolutions  as  revised  and  enlarged  by  the  Convention  and  re- 
ferred July  26,  1787,  to  the  Committee  of  I>tail 529 

VH.    Report  of  the  Committee  of  Detail,  August  6,  1787 532 

VIII.    Proceedings  of  Convention  referred  to  the  Committee  of  Style  and  Arrange- 
ment      541 

IX.    The  Constitution  as  rcjKirted  by  the  Committee  on   Style.   Septeml>cr  12,   1787, 

and  as  signed,  September  17,  1787 552 

X.     letter  transmittiiiR  the  Constitution  lo  Couf^ess.  September  17,  1787    ....  570 
XI.     ResolntiDn  of  the  Convention.   Se,.teml)cr   17,   1787,   that  Congress  transmit  the 

Constitution  to  the  States  for  ratification 571 

I).      AmENDMCNT*   to  the  CoNsT'Tt'TION 

I.    The  first  ten  amendments  to  the  Constitution  in  lieu  of  a  Bill  of  Rights    .     .     .572 
II.    Subsequent  amendments  to  the  Constitution 573 

Index 577 


THE  UNITED  STATES  OF  AMERICA:  A  STUDY 
IN  INTERNATIONAL  ORGANIZATION 


'.* 


I.    RISE  OF  THE  IDEA  OF  UNION 

A  prima  drsrendit  oriitinr  mundi 
CauMrum  leriet.     (Lucan,  Phartalia,  Book  fl) 

The  appreciation  of  a  great  and  vital  want  will  account  for  the  origin  of  the  idea  of 
a  common  union,  A  study  of  its  embodiment  reveali  the  feature  of  growth.  It  ii  to 
original  «.  n  ruliar.  that  it  may  be  termed  American.  (Richard  FrolhtHgham.  The  Rise 
of  The  A.,       x  of  the  Untied  Slates,  iXji,  p.  ig.) 

it  m/!*K.'";L'r  '"IV'.'"*'?"  ""y  "PP**'  '°  ^  «'»«  '""'«  °'  «>"•«<  imitation,  when  in  fact 
It  may  l>e  the  produvt  - '  a  common  race  injtinct,  a«  in  the  case  of  the  representative 
system  reproducing  itself  in  all  the  branches  of  the  Teutonic  race.  ...  The  law  of  histor  cal 
cntmu.ty  or  political  mheritance.  »  not  inconsistent  with  the  law  of  historical  viriaton 
or  political  oriRinalit,.  In  fact,  the  greater  the  accumulations  of  past  ex«ren?J  the 
greater  w.ll  be  the  capacity  to  solve  by  original  methods  the  problems  pre,?^[id  by  new 
experiences.  (H  ,lUam  C.  Morey.  The  First  Slate  Co„slilHl,of,i.  189/.  Annals  of  Z 
Amrruan  Academy  of  Political  and  Social  Science,  rol.  If.  part  I.  p.  mj.) 

time\';y';t'r'n7nd"SrP"of"m,i;*  ''*  ""^  "°"''"'"'  "°^''  '""  ''"''•'  °«  "  »  •^^" 
".»i'''L"»..^i""j«'^''"  ""'■  '"  •'"'  ".'*y  ""  De  Tocqueville',  "Democracy  in  America"  that 
If  we  ire'^i^u'nd':?:,.^'.^"'*"''  '''*'"•"  •*"  •"'""">  "'  •""•  "P°"  «b»"ra:r  principles" 
beinB  Tke  AthenT  /r,l  L  k"  "TV'°"'  "  T""'""  '*"'*  «*•<  Constitution  sprang  into 
oeing.  iiKe  Athene  frnm  the  brain  of  Zeus,  or  that  t  was  the  work  of  doctrinaires  rn- 
deavoring  to  found  an  ideal  republic,  it  would  he  easv  to  show  their   fal^tv     The  Con 

hroken  wi,Vthe'na'st'"wha°,tvrr  T  ^'\'  '"  '^"«'""''  '""^  •^"'"'"  '^at  it  ha,  never  really 

^^ii^ii^H^SSSS^ 

rt;;i^.dn:it.^en^"l;?,^r^'l^"' i^^? ^^^^^^^^^^^^  t'l} 

tL  ..,n,cr,can  W.a~  orPollZun^So^iai'sci^:::'^,:',^^^:^^,  ^'■<""'""''  '*'- 

1^  ^r^^^^^'^r^^^^.^^^^ 


2  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

oerhans  into  the  common  political  life  of  our  Teutonic  ami  ev  n  our  Aryan  ancestors  to 
tad  the  tr.°  historical  sources  of  American  fcleralism.  ("-><?'«  C.  ^^or<•y,  ]''^.?l''//"^J 
Amcri:a„  redtralism,  /««.  The  American  Academy  of  Pohucal  and  Socal  S.unce,  I  ol. 

In  the  old  system  assemblies  were  not  formally  instituted  but  grew  up  «/  themselves 
because  it  was  H.e  nature  of  Englishmen  to  assemble.  (S,r  John  Robert  Sccley.  The  Lx- 
pansion  of  England.  uSHs.  American  cditwn.  f-  b?) 

Vnited    States.    1S7J,   p.   39.) 

The  \ew-Fnpland  Confederacy  recognised  the  equality  of  the  colonies  'h*' 7"'=,,P"';'^2 

The  Rise  of  The  Kcl-uhlic  of  the  I'niled  Stales,  i.'<7-'.  p.  /-'•) 

,,.t   ,t   is  beginning  ,0  be   realised   Oja.  Oje  ,Co,;sti,ution^  of  tbe^  ^nited^ S,.t«,^thou^ 

The  best  reason  for  American  pride  in  the  Consti^^ution  lies    not  in  the  creative  gemu. 

of  ,ts  framers,  nor  in  the  beauty  »."d  .^^"''"'^■V^l'drof  i"s  -eonlo  It  is  for  that  reason 
and  is  a  perfect  .xpre^s.c.n  of  the  u,.  .tuttonal  ,  tethmK  ^J^j^';"'";',"- , hey  shall  continue  in 
that  it  meets  t.eir  needs  as  well  to-dav  as  .n  '787-89;  f"  ^onR  %^,J„,„\  .lisfavor  the 
the   ways   of   tb.ir    f^'^"' ■.'■\^''"f.  :''    ^^rtf-^^M  remedies:  so  long 

political  .luaoks  who  constantly  beg  ♦'i;'".''V\^^i»'^^  =*  'V,  '  i'n  ^  nil  its  possible  coming 


CHAPTER  I 


RISE   OF    THE   IDEA   OF    UNION 

On  the  11th  day  of  November,  according  to  the  old,  but  on  the  21st  day  of 
Novemljcr,  1620,  according  to  the  new  order  of  things,  some  torty-onc  pas- 
sengers of  the  Mayflozucr,  whom  a  grateful  posterity  calls  the  Pilgrims,  bring- 
ing to  the  New  World  a  new  type  of  men  and  a  new  spirit  which  we  may  with 
just  pride  call  the  American  spirit,  entered  into  a  compact  for  their  government 
when  they  should  leave  the  little  vessel  which  had  carried  them  across  a  stormy 
ocean  out  of  their  course  to  the  Hudson,  for  which  region  they  had  a  patent, 
to  the  inhospitable  shores  of  New  England,  for  which  they  had  no  patent. 
The  passage  across  the  Atlantic  had  been  stormy  in  more  ways  than  one,  for, 
in  the  absence  of  a  patent  from  the  \ew  England  Company,  the  Pilgrims 
\\2Te  without  title  to  the  soil  upon  which  they  were  soon  to  set  foot.  In  the 
absence  of  a  charter  from  the  Crown,  they  were  without  authority  to  govern 
themselves  as  a  body  politic.  Because  of  these  things  and  also  Ijecauseof 
the  frailties  to  which  even  some  of  their  numlier  were  subject,  the  better  part 
of  them,  believing  tliat  government  as  instituted  among  men  derives  its  just 
powers  from  the  con.scnt  of  the  govenied  and  that  this  consent  was  in  itself 
a  compact  on  their  part,  entered  into  that  agreement  which  we  today  call  the 
Mayflower  Compact,  which  they  thus  happily  expressed: 

In  y"  name  of  God,  Amen.  Wc  whose  names  are  underwriten,  the  loyall  Com^irt""*" 
subjects  of  our  dread  sovcraigne  Lord,  Kmg  James,  by  y"  grace  of  God.  of  ""'"" 
Great  Briiaine.  Franc,  &  Ireland  king,  defender  of  y"' faith,  S.C..  haveing 
undertaken,  for  y"  glorie  of  God,  and  advanceniente  of  'y  Christian  faith,  and 
honour  of  our  king  &  couiitrie.  a  voyage  to  plant  y"  fir>t  colonic  in  y° 
Xoriheme  parts  of  Virginia,  doe  by  these  presents  solemnlv  &  mutual v  in  y' 
presence  of  God.  and  one  of  anotlier,  covenant  &•  comlime  onr  selves  togeather 
into  a  civil!  body  politick,  for  our  better  ordering  &  preservation  iS:  further- 
ance of  y"  ends  aforesaid:  and  by  verine  hearof  to  enacte.  coiistiiiiie.  and 
frame  such  just  &■  eqiiall  lawes.  ordinances,  acts,  constitutions,  K-  ntTJces,  from 
time  to  time,  as  shall  be  thought  most  nieete  a-  convenient  for  y"  geiierall  good 
of  y''  Colonic,  unto  which  wc  promise  all  due  submission  and  obedience.' 

Just  as  the  separatists,  whom  we  call  the  Pilgrim  fathers,  traversed  a  waste 
of  waters  frotn  the  (^Id  World  to  the  Xew,  so  separatists  in  the  political  sense 

•William  Bradford.  History  of  Plymouth   Plantation,  Collections  of  the  Massachusetts 
Historical  Society,  1S56,  4th  Series,  Vol.  iii,  pp.  80-00. 


4  THE  UNITED  STATES:   A   STUDY  IN   INTERNATIONAL  ORGANIZATION 

of  the  word  traversed  a  waste  of  wilderness  and  left  three  of  the  then  eight 
towns  of  Massachusetts  Bay  in  1635,  pushing  to  the  west  —  with  the  permis- 
sion, be  it  said,  of  that  commonwealth,  or  rather,  acting  under  a  commission 
of  its  General  Court  for  a  twelvemonth.  Establishing  three  towns  on  the 
western  bank  of  the  Connecticut  River,  ihey  laid  the  foundation  of  the  State 
of  that  name;  furnishing  in  its  constitution  of  1639,  known  as  the  Funda- 
mental Orders  of  Connecticut,  what  has  been  called  the  first  written  constitu- 
tion in  the  modern  sense  of  the  term  as  a  permanent  limitation  on  governmental 
powers  known  in  history,  and  suggesting,  it  has  been  claimed,  by  the  confed- 
eration of  its  towns,  which,  however,  retained  the  power  not  delegated  to  the 
State,  the  idea  of  that  more  perfect  Union  composed  of  the  American  States. 
The  spirit  which  pervaded  these  newer  Pilgrims,  and  which  today  pervades 
the  western  world,  was  stated  Iv  Thomas  Hooker,  one  of  the  chief  settlers, 
from  his  pulpit  in  Hartford  seme  seven  months  before  the  Fundamental  Or- 
ders were  drafted  and  wen:  into  effect.  He  chose  for  his  text  the  13th  verse 
of  the  first  chapter  of  Deuteronomy :  " '  Take  you  wise  men,  and  under- 
standing, and  known  among  your  tribes,  and  I  will  make  them  nilers  over 
you."  Captains  over  thousands,  and  captains  over  hundreds —  over  fifties  — 
over  tens,  &c."  In  the  course  of  his  sermon  he  is  reported  to  have' said,  tmder 
the  caption  of  Doctrine,  in  the  brief  extract  of  it  made  by  one  of  the  congrega- 
tion: 


I.  That  the  choice  of  public  magistrates  belongs  unto  the  people,  by 
God's  own  allowance. 

II.  The  privilege  of  election,  which  belongs  to  the  people,  therefore,  must 
not  be  exercised  according  to  their  humours,  but  according  to  the  blessed 
will  and  law  of  God. 

III.  They  who  have  power  to  appoint  officers  and  magistrates,  it  is  in 
their  power,  also,  to  set  the  bounds  and  limitations  of  the  power  and  place 
unto  which  they  call  them. 

.And  the  -American  Hooker  is  reported  as  giving  for  his  American  polity 
the  following  Reasons: 

1.  Because  the  foundation  of  authority  is  laid,  firstly,  in  the  free  con- 
sent of  the  people. 

2.  Because,  by  a  free  choice,  the  hearts  of  the  peoi)le  will  be  more  in- 
clined to  the  love  of  the  persons  [chosen]  and  more  ready  to  yield  [obedi- 
ence I . 

3.  Because,  of  that  duty  and  engagement  of  the  people.' 

In  the  preamble  to  the  l-"uiulamental  Orders,  the  -American  theory  of  gov- 
ernment is  thus  stated,  omittinj;  provisions  concemin.g  churches,  in  which  mem- 
ber>;!ip,  however,  was  not  essential  to  the  exercise  of  civil  rights: 

1  .Xhsf.iots  of  Two  Sermons  hy  Rev.  Thomas  Hoolrer,  from  the  short-hand  notes  of  Mr. 
Henry  Wolcott,  ColUrtions  of  the  Connecticut  Historical  Society.  1860,  Vol.  i,  p.  20. 


MSB  OF  THE  IDEA  OF  UNION 


Forasmuch  as  it  hath  pleased  the  Allmighty  God  by  the  wise  disposition 
of  his  diuyne  p'uidence  so  to  Order  and  dispose  of  things  that  we  the  In- 
habitants and  Residents  of  Windsor,  Harteford  and  VVethersfield  are  now 
cohabiting  and  dwelling  in  and  vppon  the  River  of  Conectecotte  and  the 
Lands  thereunto  adioyneing;  And  well  knowing  where  a  people  are  gath- 
ered togather  the  word  of  God  requires  that  to  mayntayne  the  peace  and  vnion 
of  such  a  people  there  should  be  an  orderly  and  decent  Gouernment  estab- 
lished according  to  God,  to  order  and  dispose  of  the  affayres  of  the  people 
at  all  seasons  as  occation  shall  require ;  doe  therefore  assotiate  and  conioyne 
our  selues  to  be  as  one  Publike  State  or  Comonwelth ;  and  doe,  for  our  selues 
and  our  Successors  and  such  as  shall  be  adioyned  to  vs  att  any  tyme  here- 
after, enter  into  Combination  and  Confederation  togather,  to  mayntayne 
and  p'searue  the  liberty  and  purity  of  the  gospell  of  our  Lord  Jesus  w'" 
we  now  p'fesse  ...  ;  As  also  in  o'  Ciuell  Affaires  to  be  guided  and 
gouerned  according  to  such  Lawes,  Rules,  Orders  and  decrees  as  shall  be 
made,  ordered  &  decreed  .  .  .' 

As  in  the  case  of  Plymouth,  so  in  the  settlements  in  the  Connecticut  valley, 
there  was  apparently  no  grant  of  title  to  land  and  there  was  no  charter  from 
the  Crown.  In  the  Mayflower  Compact,  the  signers  profess  loyalty  and 
obedience  to  their  "  dread  soveraigne  Lord,"  but  i  d  in  themselves  authority 
"  to  enacte,  constitute,  and  fra.ne  such  just  &  equall  laws,  ordinances,  acts, 
constitutions.  &  offices,  from  time  to  time."  which  they  themselves  shall  con- 
sider to  be  in  the  general  interest  and  good  of  the  col  .  In  the  Funda- 
mental Orders  there  is  no  reference  to  their  '  dread  soveraigne  Lord."  and 
the  confederating  towns,  recognizing  that  in  their  case  government  derives  its 
just  con.sent  from  their  inhabitants  and  residents,  proceed  without  further  ado 
to  provide  for  the  election  of  a  governor,  magistrates  and  deputies  to  the  gen- 
eral assemblies  or  courts  "  for  makeing  of  lawes.  ind  any  other  publike  occa- 
tion. w'"  conserns  the  good  of  the  Comonwelth."  ^ 

The  views  of  the  Pilgrim  fathers  and  of  the  Connecticut  settlers  in  the 
matter  of  compact  and  the  action  of  the  Connecticut  settlers  in  framing  a 
system  of  government  for  their  self-created  body  politic  have  been  selected, 
not  for  the  purpose  of  establishing  priority  in  behalf  of  one  or  the  other  but  as 
showing  how,  ireed  from  the  environment  of  the  Old,  the  setiiers  of  the  Xew 
World  stated  and  put  into  practice  the  doctrines  held  by  them  as  individuals 
when  unrestrained  by  the  provisions  of  a  charter  or  instructions  from  the 
Crown,  and  as  indicating  the  conceptions  of  government  likely  to  take  visible 
form  and  effect  in  this  western  world  when  the  inhabitants  of  the  colonies 
were  free  to  devise  constitutions  for  their  States  and  a  union  of  those 
States. 


p 
P 

I 


M'.   N.   Thorpe    The   Federal  and   .Tfofr   Constitutions,   Colonial   Charters,   and   Other 

Vryantc  Uu's  of  the  I  nited  Mates  of  .Imeriea.  1909,  Vol.  I,  p.  519:  B.  P   Poore    The  led- 

V,  ,       iJ-l'"''  :^;l«-""«"""^.  Colonial  Charters,  and  Other  Organic  Lazvs  of  the   Vnited 
Cilates.  lo//,  p.  249. 

-Thorpe,  ibid.,  p.  520;  Poore,  ibid.,  p.  250. 


Early  n»ni 
of  L  nion 


New  England 
Confcderatiun 


S  ,„.  UNIIEB  STATES :  A  STUDV  .«  .»T«».T.ONAW  0«<;a».I.T>0» 

TH.p<,ss,«,vo.„n,„„w.spT«.n.„*e-^ 
even  in  ih.  17th  «ntu,y  sho»n  b>  <1^  N™J;"e^^^^^  ^  j^     William  P.nn, 

„»wll.h  >,hlh  b»rs  h,s  n.„,.  bu.  b,  ,he  An,er„.n  ^"P'  ^'^J  ""«''  *^ 

„.„,a  •• -- rF'T»r,"T;5  rrra^.^::  ^^JArTei^/d  .„ 

proposal  b,  Dr.  Franklm  ml/5  ■  ,„  „d  ,„  England  because  ,1 

r;»  ^mSr»a~r.l-Le'no.^„  aec„rd  wUb  .be  plan,  ot  .b. 

nrZ"eonn,e.s,assbow,n.H^^^^^^^^^ 

in  our  case  to  a  union  recognumg  the  greater  inieresi 

degradmg  .be  colon,es  o,  .be  su«s  ^^V^^^^^',  „  ,  ,3  .enerall, 

jr.'Xal^Tair.irsr.  Lh  >n  -..a^  caned  ,be  p.ean,ble, 

or  inducement  to  it.  and  the  first  article  runs  as  follo^^s. 

Whereas  we  all  can.  into  these  9^r^J^'^  .tjVrd  Te- cE 
end  and  ayme  namely,  to  advance  the  ^^-g^^^J^^^^^^^  and  whereas  in 
and  to  enjoy  the  I'^ert.es  of  the  Gospel,  mpu     y         ^j-^^^^  ^^^^^^^ 

o»ir  setvling  (by  a  wise  proMdence  o'/-'°"'.         ,    ,  g^  that  we  cannot  (ac- 

?he  Sea.  CoLts  and  Rivers^  then  wa^^^^^^^ 

cording  to  our  desire)  ^^.thconvenunce^^^      ^^.^^  ^^  ^^^^^^,1  ^ 

Jurisdiction:  and  whereas  '■''^J'yjy^P^     l^,  ^^y  prove  in  urioiis  to  us  and 
tions.  and  =t^='"g\ '^"^^Ses^which  hereat^e.        y  P^^^   ^^  committed 

our  posterity:     And   fo  asmuch  ^^  the   ^^        Plantations  of  the  English 
sundry  inso  encies  and  outrages  upon  sc^c.a  ^^^^^  ^f 

Td  have  of  late.combined  themselves  agmst  ^'-    A^"^^J-f,\„>,  ,,     hich 
the  sad  Distractions  in  £..<7'a«^.  >^hich  thcX  na  ^^  ^  ^^^.^^^ 

they  know  we  are  hinderea  ^oth  from  tliat  nui  y       ^^^^^  ^jn^es,  we 

or  reaping  those  con.fortab  e  frmts  o    protect.on  wh.^^^  ^^^^.^  ^ 

might  well  expect;  we  therefore  doe  concc.Net  ^^^^^^^  for  mutual 

delay,  to  enter  into  a  present  >-0"'°tiation  an      k  ^.,^^.^^_  ^^^^ 

S  ?o"*  r^n^'otlier^'Lr-^^    -^^^^^^^^^^^  ^"°"''"'  '"  ''' 

fenmi'r°and°tVi^  meaning  o^  ^hecns„ing^\rt.c^^^^^^^  ^^^^^^  the  parties. 

I.  \Vherefore  It  IS  fully  Agreed  an.Konuui  severally  by  these 

Tbe  sec...,  aniCe  ,..K,  ...a.  .be  «'t 'i^i^rrd'dltKC.'C.S 
'"Tbeti::;"';;:.  «„*,  Jbl  mi,.  ...  ...c  cConi.,  ...  Ma,sacb„se„s.  Ply 

•  ---.  "'„"■'  a-vs  -:  ^''' •" '"-  """■' ""  ■""'■ '"'- " '"  """■ 

-,-         .  T      tT-a-llv      P"        iKnft.    n.    30*.. 


I 


RISE  OF  THE   IDEA  OF   UNION  ' 

niouth.  Connecticut  and  New  Haven,  leaving  out  Rhode  Inland  unless  it  would 
Acknowledge  the  jurisdiction  either  of  Massachusetts  or  of  Plymouth.  This 
the  Rhode  Island  settlement  refused  to  do  and  its  application  for  admission  was 
reiected  This  little  co.Timunity  has  had  a  mind  of  its  own.  It  was  not  a 
member  of  the  first  Union:  it  failed  to  send  delegates  to  the  Constitutiona 
Convention  of  1787.  and  it  left  itself  out  of  that  greater  Uniorf  which  we  call 
the  United  States  until  it,  the  smallest,  decided  to  throw  in  its  lot  with  the 
other  and  larger  States. 

The  fourth  article  provided  that  the  expenses  of  warfare.-  wars  were  to  be 
iust  -  offensive  or  defensive.  "  both  in  men.  provisions,  and  all  other  disburse- 
ments "  should  be  borne  according  to  the  males  within  each  of  the  colonies 
"from  sixteen  yeares  old.  to  threescore,  being  inhabitants  there  and  the 
spoils  of  war,  if  any  there  should  be,  were  to  1^  "  proport.onably  divided 
among  the  said  Confederates." 

The  fifth  article  declared  that  Massachusetts,  as  the  larger  colony,  should 
furnish  against  the  enemy  one  hundred  armed  men.  and  th.it  each  of  the  others 
should  furnish  fortv-five.  and  in  this  proportion  if  more  or  less  were  needed 
This  was.  however,  only  to  apply  to  just  wars.     A  method  was  needed  and 
provided  for  determining  whether  the  wars  were  just,  for  i    they  were  not  the 
"  Confederates  "  were  not  to  be  saddled  with  the  expense  of  the  meml)er  caus- 
ing an  unjust  war.     The  commissioners  of  the  Confederation  were  to  delcr- 
nine  this.  "  and  if  it  appear,  that  the  fault  lav  in  the  party  so  invade.l.  that 
then,  that  Jurisdiction,  or  Plantation,  make  ju>t  satisfaction,  both  to  the  invad- 
er, whom  thev  have  injuried.  and  l*ar  all  the  charges  of  the  war  tnemse  ves. 
without  requiHng  any  allowance  from  the  rest  of  the  Confederates  toward  the 

S1I11C 

\fter  having  stated  the  general  aims  and  purposes  of  the  Confederation  to 
be  for  mmual  protection,  a  ul  the  part  which  each  should  play  in  case  of  war, 
which  the  Union  evidemlv  contemplated  as  a  defensive  measure,  the  articles 
pass  to  0  (luestion  no  less  important  and  more  germane  to  the  present  purpose. 
In  the  sixth  article  the  Confederation  is  looked  upon  as  having  interests  of  its 
own    superior  to  and  different  from  the  interests  of  the  contracting  part.es 
and  a  careful  line  of  demarcation  is  drawn  beaveen  the  league  on  the  one  hand 
and  the  members  thereof  on  the  other.     Equ;  lity,  however,  was  the  life  and 
breath  of  the  agreement.     Each  of  the  four  jurisdictions  was  to  appomt  two 
commissioners,  fullv  empowered  by  each  of  the  colonies  "  to  hear,  examine 
weigh,  and  determine  all  affaires  of  war.  or  peace,  leagues,  ayds.  charges,  and 
numbers  of  men  for  war.  division  of  spoyles.  or  whatsoever  is  gotten  by  con- 
qne.t   receiveing  of  more  Confederates,  or  Plantations  into  Lomb.nat.on  wUh 
any  of  these  Confederates."'  but  "not  intermedling  with  the  Government  of 

1  Ibid.,  p.  564. 


8 


THE   UNITED  STATES:   A   STIDY   IN   INTERNATIONAL  ORCANIZATION 


any  of  the  Jurisdictions  which  by  the  third  Article  is  to  l)e  "  preserued  intirely 
to  themselves."  Six  of  the  eight  commiiisioners  were  empowered  "  to  settle, 
and  determine  the  businesse  in  question."  but  if  this  number  should  fail  to 
agree  then  the  matter  was  to  be  referreil  to  the  colonies,  and  if  "  the  businesse 
so  referred,  be  concluded,  then  to  be  prosecuted  by  the  Confederates,  and  all 
their  Memljers."  A  meeting  was  to  be  held  the  first  Thursday  in  each  Sep- 
tember of  the  year  and  in  regular  rotation  at  each  capital  of  the  contracting 
colonies. 

By  the  seventh  article,  a  president  of  the  commissioners  was  to  be  elected 
by  them,  or  any  six  of  them,  but  he  was  to  be  a  presiding  officer,  not  an  execu- 
tive. 

The  eighth  article  has  some  prophetic  provisions.  Thus,  the  commissioners 
were  to  "  tndeavoure  to  frame  and  establish  Agreements  and  Orders  in  gen- 
erall  cases  of  a  civil  nature,  wherein  M  the  Plantations  are  interested,  for 
preserving  peace  amongst  themselves,  and  preventing  (as  much  as  may  be)  all 
occasions  of  war,  or  differences  with  others,  as  about  the  free  and  speedy  pas- 
sage of  Justice  in  each  Jurisdiction,  to  all  the  Confederates  equally,  as  to 
their  own,  receiving  those  that  remove  from  one  Plantation  to  another,  with- 
out due  Certificates."  And  in  the  last  of  these  prophetic  provisions  are  the 
surrender  upon  request  of  "  any  Servant  run  away  from  his  Master,  into  any 
other  of  these  Confederated  Jurisdictions,"  and  the  surrender  of  escaped 
prisoners  or  fugitives  from  justice  upon  retjuest  of  the  magistrates  of  the 
colony  from  which  the  escape  was  made. 

1  he  ninth  article  is  also  reminiscent,  as  it  were,  of  the  future,  stipulating 
that,  as  "  the  justest  Wars  may  be  of  dangerous  consetiuence,  especially  to 
the  smaller  Plantations  in  these  United  Colonics,"  it  was  agreed  that  none  of 
them  should  "  at  any  time  hereafter  liegin,  undertake  or  engage  themselves,  or 
this  Confederation,  or  any  part  thereof  in  any  War  whatsoever  (sudden  ex- 
igents with  the  necessary  consequences  thereof  excepted  .  .  .)  without  the 
consent  and  agreement  of  the  forenamed  eight  Commissioners,  or  at  least  six 
of  them,  as  in  the  sixt  .Article  is  provided." 

The  tenth  article  permitted,  in  default  of  the  attendance  of  all  the  commis- 
sioners duly  notified  to  attend,  four  to  act,  but  six  were  nevertheless  required 
to  determine  the  justice  of  the  war,  and  in  the  eleventh  article  it  was  agreed: 

That  if  .my  of  the  Confederates  shall  hereafter  break  anv  of  these  present 
Articles,  or  be  any  otlicr  way  injurious  to  any  r.ne  of  tlie  o'thcr  liirisdictioiis 
such  breach  of  .\j;reenicnt.  or  injury  shallie  ihilv  considered,  and  ordered 
by  the  CommissioiKrs  for  the  other  Jurisdictions!  tiiat  both  ])eace.  and  this 
present  Confederation,  may  be  intirely  preserved  without  violation.' 

The  commissioners  of  the  contracting  parties,  other  than  Plymouth,  were 

>  Records  of  the  Colony  of  Xetr  Ilarcn.  p.  566. 


RISE  OF  THE   IDEA  OF  UNION 


duly  authorized  to  sign  the  agreement,  which  they  did  on  May  19  /  29,  1643. 
It  was  therefore  allowed  that  the  articles  and  agreements  of  "  this  perpetuall 
Con  federation  "  should  be  submitted  to  the  good  people  of  Plymouth,  and 


•if 

a 
-« 

.i 


That,  if  Plimoth  consente,  then  the  whole  treaty  as  it  stands  in  these 
present  articls  is,  and  shall  continue,  tirnie  &  stable  without  alteration.  lUit 
if  I'limoih  come  not  in,  y.t  y'  other  three  confedcrats  doe  by  these  presents 
confeirnie  y'  whole  confederation,  and  y"  articles  thcrof.' 

The  General  Court  of  Plymouth  authorized  its  commissioners  to  ratify  and 
confirm  the  articles  August  29/September  7,  1643,  which  they  did  at  Boston, 
at  which  time  and  place  the  other  commissioners  subscribed  the  Articles  of 
Union  on  liehalf  of  their  respective  colonies. 

The  Mayflower  Compact  of  November  11/21,  1620,  had  set  forth  the 
American  conception  of  the  State  as  the  agent  of  the  people  creating  it,  and 
here  in  this  little  confederation  of  four  straggling  colonies,  there  lies  hidden 
the  germ  of  a  greater  Union,  in  which  the  memliers  should  be  States,  not 
provinces,  determining  their  internal  affairs,  and  Ijc  represented  by  two  com- 
missioners, chosen  by  each  of  them  upon  a  footing  of  equality  in  a  larger  coun- 
cil. It  is  not  meant,  of  cour.se,  that  this  larger  union  was  the  outgrowth  of  the 
smaller,  but  merely  that  the  spirit  which  produced  this  greater  union  was 
already  in  evidence  in  the  New  World. ^ 

The  idea  of  union  dwelt  in  the  mind  of  William  Penn.  Peace  with  Penn 
was  a  passion.  In  1693  he  published  his  well  known  essay  Touard  the 
Present  and  Future  Peace  of  Europe,  proposing  the  establishment  of  an  Euro- 
pean diet,  parliament  or  estates,  moved  thereto,  as  he  says,  by  the  project  of 
Henry  I\';  and  it  is  interesting  to  note,  in  passing,  that  Penn's  larger  project 
is  still  l)efore  the  world,  for  it  is  today  the  basis  of  projects  of  leaders  of 
thought  on  both  sides  of  the  Atlantic.  It  can  well  l)e  imagined,  therefore, 
that,  as  the  proprietor  and  founder  of  the  Commonwealth  which  bears  his 
name,  he  had  a  special  interest  that  it  should  dwell  in  peace,  as  well  as  a  general 
desire  that  the  plantations,  which  already  had  within  them  the  possibilities  of 
statehood,  should  dwell  in  peace  and  harmony.     Therefore,  four  years  after 

'William  Bradford,  History  of  Plymouth  Plantation,  Collections  of  the  Massachusetts 
flistnrieal  Society.  1856,  4tli  Series,  Vol.  Ill,  p.  AZ2. 

'^Oi  tlic  Confederation,  cniliracins  four  colonies,  thirty-nine  towns  with  a  population  of 
24.000  .souls,  a  well  informed  and  jii>t  historian  has  said:  "  .V  j;reat  principle  was  at  the 
bottom  of  tile  confederation:  luit,  noble  as  were  the  aims  of  those  who  handled  it.  they  had 
not  yet  attained  to  sufficient  breadth  of  view  to  apidy  it  even  to  the  whole  of  Xew  Kngland." 
Richard  FrothinKham,  The  Ktse  of  the  Republic  of  the  i'nited  Slat".  WJ,  p.  4i. 

The  importance  of  the  Uniim  of  the  struggling  colonies  as  a  prcci.ient  was  however  T-.t 
lost  on  the  British  chronicler,  Chilmers.  who  said,  properly  etiuu!.'!!.  that  it  "oflfers  the  firsf 
example  of  colhtion  in  colonial  story  and  showed  to  parfv  leaders  in  after  times  the  adv:in- 
tages  of  lonccrt."  Cleorge  Chalmers,  I'olitiral  .htiuds  of  i,'ie  /'/.m-.i:/  ''  ■  ,/  Colonies  from 
their  Settlement  to  the  Peace  of  1763  (1780),  p,  177. 


William  rrno't 
"  Scheam  '* 


fH' ^ 


10 


THE  rxiTED  states:  a  study  in  international  organization 


his  international  proposal,  he  suggested  a  colonial  plan  of  union,  entitling  his 
plan: 

A  r.riefe  and  Plaine  Schtam  how  the  English  Colonies  in  the  North 
parts  of  America  Viz :  lioston  Connecticut  Road  Island  New  York  New 
Jersey.  Tcnsilvania.  Maryland.  Virginia  and  Carolina  ni.iy  be  made  more 
useful!  to  the  Crowne,  aiid  one  anothers  peace  and  safty  with  an  universall 
concurrance. 

The  colonies  were  to  meet  by  their  stated  and  appointed  deputies  once  a 
year,  and  oftener  if  need  Iw,  during  the  war  which  then  raged  in  Eurojjc  and 
in\()lve(l  the  American  colonies  as  at  this  writing  it  does  the  American  .States, 
and  in  times  of  peace  at  least  once  in  two  years,  "  to  delate  and  resolve  of  such 
measures  as  are  most  adviseahle  for  their  better  understanding,  and  the  publick 
trantiuility  and  safety ;  "  that  each  colony  was  to  be  represented  by  two  persons, 
as  I'cnn  was  careful  to  point  out,  "  well  (jualified  for  sence  sobriety  and  sub- 
stance." These  were  to  compose  the  Congress,  as  the  assembly  was  to  be 
called,  of  twenty  persons,  to  be  under  the  presidency  of  the  King's  Commis- 
sioner—  who  was  to  be  in  tiiis  case  the  Governor  of  the  colony  of  New  York, 
as,  according  to  the  plan,  the  Congress  was  to  meet  "  near  the  Center  of  the 
Colonics;  "  and  in  tune  of  war  the  King's  Cnnuiiissioner  was  to  l)e  commander 
of  the  colonial  quotas,  in  the  si.xth  article  the  gist  of  the  plan  is  given,  and  of 
the  activities  of  the  deputies  it  is  said : 

Ihat  their  business  .shall  be  to  hear  and  adjust  all  matters  of  Complaint 
or  ilifftrences  between  I'rovince  and  IVovince,  As  1"  where  persons  (juit 
their  own  I'rovince  and  goe  to  another,  that  tliey  may  avoid  their  just  debts 
tlio  they  be  able  to  pay  them.  2^  where  olTenilers  lly  Justice,  or  Justice  can- 
not well  lie  liad  upon  such  olTenders  in  the  Provinces  that  entertaine  them, 
3'"'  to  prevent  or  cure  injuries  in  point  of  commerce.  4"'.  to  consider  of 
wavs  and  means  to  su|ip(irt  tlie  union  and  safety  of  these  Provinces  against 
the  jniblick  enemies.  In  which  Congresse  the  Quotas  of  men  and  charges 
will  be  iimch  I''asier.  ami  mf>re  equally  sett,  then  it  is  possible  for  any  estab- 
lislinient  made  here  |  in  I'nKland)  to  lio:  for  the  Provinces,  knowing  their  own 
condition  and  one  .inotlier^.  can  debate  that  matter  with  more  freedome  and 
satist.ictiun  and  better  adjust  and  ballance  their  affairs  in  all  respects  for 
their  conunoii  safty.' 

In  this  i)lan  we  have  a  forerunner  of  the  Continent.al  Congress,  for  it  is  to 
embrace  all  Iulgli^h  colonies  in  the  "'  North  parts  of  America."  Congress  it 
is  called,  and  it  is  provided  with  a  presiding  officer. 

With  unerring  instinct  Penn  laid  his  fmger,  in  this  first  of  ederal  projects 
fur  ihe  En,i;lisli-speaking  coionies  of  the  cimtinent.  on  what  .vas  in  fact  the 
object  of  the  .\merican  .iev(>l\"i<>!;.  the  l)etler  gosernment  of  themselves  and 
the  safeguarding  of  their  interots  by  thj  col'Hiials  in  America,  rather  than  by 

1  William   I'cim's   I'lan-  for  a  I'liicn  of  the  Colonies.  8lli   February,  16%-97,  The  Penn- 
s^!u::l!li  MtrmziUir  •'/  llist''r\-  '-•"'!  III. unuMi   .  Vol    vi,  1K87,  [>.  4<)6. 


RISE  OF   THE   IDEA   OF   I'NION 


11 


the  English  in  England.  Here  again  it  will  be  observed  that  each  colony, 
irrespective  of  size  or  population,  has  an  e<iual  voice  and  ;in  c<|iial  luunber  of 
representatives,  and  here  again  the  numlwr  is.  as  in  the  .New  England  Con- 
federation and  in  the  Constitution  of  the  United  States,  two  for  each  Colony 
or  State.  As  in  the  case  of  the  C'onfe<lerati<)n,  it  is  not  meant  to  suggest  that 
I'enn's  plan  gave  birth  to  our  instrument  of  governinent.  but  as  the  articles  of 
the  New  England  Confederation  >liow  the  advantages  of  union  for  their  gen- 
eral welfare,  so  this  plan  shows,  on  the  part  of  an  enlightened  Englishman,  the 
method  which,  put  into  practice,  might  have  made  of  the  culoiiio  great,  self- 
governing  dominions,  as  is  Canada  today  to  the  north  of  the  great  Republic. 

The  ne.\t  projwsal  which  can  l)e  said  to  have  had  an  important  iiitluence 
upon  the  destinies  of  the  colonies  was  maile  in  1733  by  (ireat  I'ritain.  which 
viewed  with  alarm  and  apprehension  the  enc  oaclmients  of  Erance  in  America, 
and  which  therefore  directed  the  Ciovernors  of  the  .\merican  colonies  to  ap- 
point delegates  to  a  Congress  which  was  to  meet  at  a  time  and  a  place  to  be 
fi.xcd  by  the  Ciovernor  of  New  York,  in  order  to  treat  with  the  Six  Nations  of 
Indians  of  that  colony,  to  secure  their  alliance  in  ca>c  of  war  with  I'rance  and 
to  concert  measures  against  that  power.  'I'liis  ImkIv,  called  the  .Xlbany  Con- 
gress from  the  name  of  the  i)lace  in  which  it  assembled,  was  conii)o^ed  of  dele- 
gates from  seven  colonies  and  met  on  June  19,  1754.  There  were  present  four 
delegates  from  New  Hampshire,  five  from  Massachusetts,  two  frum  Khode 
Island,  three  from  Connecticut,  five  from  New  York,  four  from  rennsyhania, 
ap''  two  from  Maryland. 

There  w.is.  from  the  opening  of  the  Congress,  a  strong  sentiment  in  favor 
of  a  union  of  the  Colonies,  which  on  the  i4th  was  unanimously  declared  "  at 
present  ab.solutely  necessary  for  their  security  and  defence."'  A  committee 
of  one  from  each  of  the  seven  colonies  present  was  appointed  to  prepare  a 
plan  of  union.  On  July  9th,  Dr.  Franklin,  who  represented  Pennsylvania,  was  r.eni.mm  Frank- 
"  desired  to  make  a  draught  of  it."  -  On  the  following  day  a  draft  of  L'l.ion, 
largely  drawn  by  him,  was  presented  and  adopted,  and  on  July  11,  1754.  the 
Congress  adjourned. 

By  the  "Albany"  or  "Dr.  Franklin's"  plan  of  union  (it  is  known  by 
either  name),  the  Union  was  to  con  ' ;t  of  all  the  British  colonies  in  North 
America,  with  the  exception  of  Georgia,  which  had  been  but  recently  founded, 
of  Delaware,  which  was  not  yet  independent  of  Pennsylvania,  and  of  Vermont, 
which  was  not  yet  a  distinct  colony.  The  purpose  of  the  Union  was  stated  to 
be  "  for  their  mutual  Defence  and  Security,  and  for  extending  the  British  Set- 
tleinents  in  North  America."  The  niethcxl  by  which  the  union  was  to  be 
effected  is  thus  set  forth  : 

'  Doiunifnts  Relative  to  the  Colonial  History  of  the  State  of  Xew  V'ork,  J.  R.  Brodhead 

ed.,  59.';5,  VoS.  \i,  p.  859. 
s/tid.,  p.  885. 


12 


THE   UNITED  STATES:    A   STUDY    IN    INTERNATIONAL  ORGANIZATION 


That  humble  application  be  made  for  an  Act  of  the  Parliament  of  Great 
Rrittain,  by  virtue  of  which,  one  General  Govern'  may  be  formed  in  America, 
including  all  the  said  Colonies,  within,  and  under  which  Govern'  each  Colony 
may  retain  each  present  constitution,  except  in  the  particulars  wherein  a 
change  may  be  directed  by  the  said  Act,  as  hereafter  follows.' 

The  government  of  the  union  was  to  consist  of  a  President-General,  ap- 
pointed by  the  Crown,  and  a  Grand  Council,  chosen  by  the  representatives  of 
the  people  of  the  several  colonies.  The  members  of  the  Grand  Council  were 
to  l)c  appointed  by  the  House  of  Representatives  of  each  of  the  colonies,  but 
not  upon  a  footing  of  eiiuality,  the  larger  colonies  having  a  larger  represen- 
tation, as  I='ranklin  says  in  his  interesting  commentary,  "in  some  degree 
accordinR  to  the  proportion  it  contributed  to  the  general  treasury."  ^  Forty- 
cij;ht  in  all  were  to  lie  chosen,  of  which  the  then  largest  colonies,  Massachu- 
setts Bay  and  \irginia.  were  to  have  seven,  and  the  smallest.  New  Hampshire 
and  Rhode  Island,  two  each,  the  members  of  the  council  meeting  for  the  first 
time  in  the  city  of  Philadelphia  up<in  the  call  of  the  President-General. 

The  memliers  thus  selected  were  to  sit  for  a  pericxl  of  three  years,  the  num- 
ber of  delegates  allowed  each  colony  was  to  lie  revised  after  the  first  three 
years  of  the  union,  and  "  from  time  to  time,  in  all  ensuing  elections,"  to  be 
basetl  upon  "  the  proportion  of  money  arising  out  of  each  colony  to  the 
general  treasury."  The  council  thus  composed  was  to  meet  yearly,  and  oftener 
if  required,  at  such  time  and  at  such  place  as  agreed  to  Ixjfore  adjournment, 
or  in  case  of  emergency,  as  was  to  be  <lelerniined  by  the  President-General 
upon  the  written  consent  of  seven  members  of  the  council  "with  due  .1  d 
timely  notice  to  the  whole."  The  council  it.<t!f  was  to  choose  its  speaker,  and 
it  was  neither  to  be  dissolved  nor  prorogued,  nor  to  sit  longer  than  six  weeks 
at  any  one  time,  without  their  own  consent  "  ir  the  sjjerial  command  of  the 
crown."  The  memliers  were  to  lie  allowed  ten  shillings  per  diem  during  their 
session  and  journey  to  and  from  the  place  of  meeting,  and  twenty  miles  were 
to  be  reckoned  a  day's  j(,urney. 

The  assent  of  the  President-General  was  necessary  to  all  acts  of  the  Council 
which  he  should  execute  and  be  was  authorized,  in  words  which  suggest  the 
language  of  that  greater  instrument  in  whose  framing  the  author  of  the  Albany 
plan  siil)se(|uently  took  part,  "  with  the  advice  of  the  Grand  Council  "  to  make 
treaties  with  the  Indians  and  also  to  declare  peace  or  war  with  Indian  nations. 
The  i 'resident  and  Council  were  to  regulate  tratie  with  the  Indians,  to  act  for 
the  Crown,  which  henceforth  was  to  lie  the  sole  purchaser  of  lands  from  the 
Indians,  to  grant  settlements  "  till  the  :rown  shall  think  fit  to  form  them  into 
particular  },'()\ ertimenis."     The  President  and  Council  were  likewise  to  raise 

•  D.iiumciils  AV.'o/ijv  lo  llu-  Colonial  History  of  Xt-w  Vorh.  Vol.  vi,  p.  889. 

2  .\.  11  Smyth,  The  ll'riliniis  of  fli'niomin  Franklin  (Niw  York,  the  Macmillan  Company, 
190"i  Vol.  iii'.  p.  2)2.  Sec  ahu  Ja-ri!  S/'urks,  T'li  i'-'orks  c-f  Pfnjamin  Franklin,  Vol.  iii, 
p.  41. 


USE  OP  THE    IDEA  OP   L'NION 


13 


I 


soldiers  and  build  forts,  to  equip  vessels  for  their  defense  and  the  protection  of 
their  trade,  but  not  to  "  impress  men  in  any  colony,  without  the  consent  of  the 
legislature."  For  these  purposes  the  President-General  and  the  Council  were 
em|)owered  "  to  make  laws,  and  lay  and  levy  such  general  duties,  imposts,  or 
taxes,  as  to  them  shall  appear  most  equal  and  just  (considering  the  ability  and 
other  circumstances  of  the  inhabitants  in  the  several  c»)lonies ),  ami  such  as  may 
l)e  collected  with  the  least  inconvenience  to  the  people;  rather  discouraging 
luxury,  than  loading  industry  with  unnecessary  burthens." 

Provision  was  made  for  the  apjiointment  of  a  general  and  a  particular 
treasurer  when  necessary,  with  the  proviso  that  no  money  was  to  be  paid  out 
excent  "  by  joint  orders  of  the  President-General  and  Grand  Council  "  and  in 
pursuance  of  law,  and  that  accounts  were  to  be  yearly  settled  and  reported  to 
the  assemblies  of  the  difTerent  colonies. 

The  quorum  for  the  Grand  Council  was  fixed  at  twenty-five  members,  pro- 
vided there  I)e  a  representative  from  the  majority  of  the  colonies.  The  Presi- 
dent-General and  the  Grand  Council  were  a  law-making  bo<ly,  and  the  article 
on  this  important  head  reads : 

That  the  laws  made  by  them  for  the  purposes  aforesaid  shall  not  be 
repugnant,  but,  as  near  as  may  be,  agreeable  to  the  laws  of  England,  and 
shall  be  transmitted  to  the  King  in  Council  for  approbation,  as  soon  as  may 
l)e  after  their  passing;  and  if  not  disapproved  within  three  years  after  presen- 
tation, to  remain  in  force.' 

In  case  of  the  death  of  the  President-General  the  speaker  of  the  Grand  Council 
was  to  act  "  till  the  King's  pleasure  he  known." 

The  provision  concerning  the  officers  is  interesting,  as  this  in  one  respect 
suggests  the  device  of  a  later  plan  of  union,  in  that  all  military  and  naval 
officers  "  to  act  under  this  general  constitution  "  were  to  be  nominated  by  the 
President-General  with  the  approval  of  the  Grand  Council.  I5ut  civilian  offi- 
cers were  themselves  to  be  nominated  by  the  Council  and  to  receive  the  Presi- 
dent-General's approljation  before  entering  upon  the  performance  of  their 
duties.  It  was  foreseen  that  vacancies  would  occur  either  by  death  or  removal 
of  the  military  and  civil  officers  appointed  under  this  Constitution,  and  it  was 
therefore  provided  that  the  Governor  of  the  province  should  appoint  others  in 
their  place  "  until  the  pleasure  of  the  President-General  and  Grand  Council  can 
l)e  known."  I  lere  again  there  is  a  suggestion  of  appointments  to  be  made  sul)- 
ject  to  the  confirmation  of  the  grand  council  known  as  the  Senate  of  the  United 
States. 

The  plan  ended  with  a  very  important  provision,  safeguarding  the  colonies 

against  usurpation  on  the  part  of  the  proposed  government,  for  the  military 

and  civil  establishments  in  each  colony  were  to  remain  "  in  their  present  state, 

the  general  constitution  notwithstanding,"  and  a  right  was  expressly  granted  to 

'  Smyth,  ibid.,  p.  22i ;  Sparks,  Vol.  iii,  p.  52. 


14  THE   LNITED  STATES:   A   STl  DY    IN    INTEHN  ATION  AL  C«UANUATION 

each  colony,  contrary  to  the  provision,  of  the  constitution,  to  defend  itself  on 
a  siulden  enu-rRency  at  the  expense  of  the  union.  .  ,    ,  .u. 

Dr   I-ranklin's  plan  was  premature.      The  colonies  .l.d  not  as  yet  feel    he 
nece>sitv  of  uni.m  in  or.ler  to  protect  tluMusclves  against  what  they  regarded 
as  unju'stif.al.le  oppression  on  the  part  of  the  .m.ther  country,  an.l  they  were 
therefore  u..w>lhnK  t..  make  what  they  were  please.l  to  call  the  concessu.ns 
contained  in  the  .Mhanv  plan.     The  home  authorities,  on  the  other  ha.id.  w^ere 
ap|.arently  not  rea.lv  to  consoli.late  their  colonial  etr    re  in  .America,  an.l  m 
anv  event  thev  were  likewise  imwillinn  to  make  the  .       essions  to  sell-Kovern- 
ment  recomniended  in  the  .Mhany  plan      As  Dr.  l-ranklin  hi.nself  sa.d.     the 
Crown  .lis.-.pproved  it.  as  having  too  much  Weight  in  the  l)em..crat.c     art  of 
the  (.onstitution:  an<l  every  .\sse.nl.ly  as  having  allowed  too  much  to  1  reroga- 
tive      So  it  was  totally  rejected."     Many  years  after  the  .Mhany  C  onventu.n. 
a.ul  two  years  after  the  a.loption  of  the  Constitution  of  the  .nore  ,H-rfcct  I  mon 
the  venerat.le  Hr.  l-rankliu  recurre.l  to  the  .Mbany  plan  an.l  thus  expt-es^sed 
himself  concerning  the  results  which  in  his  opinion  would  have  followed,  ha.l 
his  plan  of  I'nion  Iwen  adopted: 

( )n  Reflection  it  nov  eems  probable,  that  if  the  foregoing  Plan  or  some 
thinir  like  it  hud  l«cn  .opted  atul  carried  into  LxeciU.on,  the  sub^ciutnl 
sVtnra  u  .1  of  t  .  ■  olouics  from  the  Mother  Country  might  not  so  s.H^n  have 
h  en  '  .  r  the  Mischiefs  sutTercd  on  iK.th  sides  have  mcurrcd  ,*rha  s 
5;'  K  .  ;.  t  her  Century.  I'or  the  Colonies,  if  so  un.t.d.  would  have  re.nHy 
Ixl-n  ^s  thev  then  thought  themsdves.  sufficient  to  the-r  own  Defence,  and 
£  ,^  tru  ted  with  it.  as  by  the  Plan,  an  .\. ..>y  .  ;  ■  -tr.lauv  i.,'  th.U  pur,«.se 
wo  M  ave  In-en  unnecessary;  "Ihe  Pretences  for  trannng  the  ^t.a.n,  .A  i 
wo  ,  hen  not  have  existed,  tior  the  other  projects  for  drawmg  a  Kevenue 
frmn  America  t.,  P.ritain  bv  .Act  of  Parlian.ent,  which  were  the  I  auses  of  the 
Ireach  &  atten.led  with  such  terrible  F.x,>c-nse  of  P.lood  a.id  .1  rcasure ;  so 
th^Tthe  different  Parts  of  the  Iuui>ire  might  st.ll  have  remamed  m  I'e.ice  and 
Union.' 

I?v  1754  events  were  moving  rapidly.  The  m.in  who  was  destined  to  lead 
the  Revolutionary  armies  was  already  in  the  field  as  a  subaltern  in  the  Irench 
and  Indian  War.  which  is  tlie  name  by  which  the  Seven  \ears  War  of 
Furope  i.  known  in  .America.  Franklin,  who  was  t..  remler  hardly  less  dis- 
tinguished service  to  his  ,.ge.  typified  .American  thinking  at  its  In^st.  T  he  coti- 
(luest  of  Canada  ha.l  guen  Great  Britain  an  unbroken  domain  from  the  Gulf 
of  Mexic.  northward.  The  Treaty  of  Peace  had  left  a  clear  title  to  the  terri- 
tory from  the  .Atlantic  Ocean  to  the  Mississippi  River,  with  only  Spain  to  the 
west  of  that  water.  The  limes  seemed  ripening  for  a  uniionn  system  i.f 
government.  There  was  no  longer  a  formidable  enemy  threatening  the  exist- 
ence of  the  colonies  from  without;  the  hcmie  authorities  ielt  that  henceforth 

'  .\.  H.  Smyth,  The  Uriiinm  oj  Dinjju.in  Franhim,  Vu!.  ni.  f    "'  f.--»t 


KISB  or  TUB  IDEA  OP  UNION 


15 


they  were  to  have  a  free  hand  in  moiildinB  the  colonies  to  their  will,  and  the 
MH'ants  of  the  Crown  '■    1  ItcRiin  to  put  the  imperial  house  in  order. 

Without  indulging  in  triticisni  of  the  Crown  and  its  advisors,  and  without  vlV.T  -  imwrtai 
cominendatiiin  of  the  colony  and  its  a(lv(Katcs,  it  was  nut  unreasonalile,  from  •"''"'•"•"' 
the  standjxjint  of  the  mother  country,  that  the  colonies  should  l>e  sulijcctcd  tt> 
a  centralized  control,  that  they  should  contrilnite  to  their  own  support,  that 
they  should  Ite  made  to  feel  that  they  were  an  integral  portion  of  the  empire, 
and  that  therefore  they  should  assume  their  share  of  the  iinperinl  luirden,  to  be 
determined  by  the  imperial,  not  by  the  colonial,  authorities.  Nor  svere  the 
views  of  the  colonists  unreasonable  from  their  own  point  of  view,  in  that  they 
had  opened  up  and  settled  the  New  World,  the.  they  had  brought  with  them 
the  common  law  and  the  rights  of  Englishmen,  that  they  were  not  only  inher- 
ently entitled  to  the  blessings  of  Kxal  government,  but  that  they  deserved  such 
government  by  the  services  they  had  rendered,  and  that,  while  far  from  unwill- 
ing to  jierform  their  full  duty  to  the  empire,  they  nevertheless  lielieved  that 
the  money  raised  by  taxing  thetn  should  \k  spent  in  America  in  accordance 
with  their  judgment  and  that  they  themselves  should  determine  what  their 
contributions  should  lie.  instead  cf  having  them  determined  by  authorities 
acriiss  the  seas,  l)efore  whom  they  were  not  represented,  and  whose  action  they 
could  neither  influence  nor  control.  The  home  government  looked  at  the 
colonies  from  the  standpoint  of  the  past,  as  though  ihey  existed  or  the  licnefit 
of  the  home  country  and  that  the  home  authorities  were  naturally  suirt.'rior  to 
them.  The  colonies,  on  the  other  hand,  looked  at  their  relations  with  the 
mother  country  from  the  standpoint  of  the  future,  in  which  they  were  to  be 
integral  i)arts  of  -i  grtat  empire  and  i'^  •!:  •  economy  of  which  they  were  to  Ijc 
practicallv  self-governing  dominions,  united  by  language,  tradition,  and  en- 
lightened interest,  but  in  which  there  was  to  1*  no  mark  or  suggestion  of  in- 
feriority.    The  new  wine  broke  the  old  Uittlcs. 

It  was  foreseen  that  the  adoption  of  a  Declaration  of  Independence  would  Fore.ight 
necessitate  some  form  of  general  government,  because,  in  the  opinion  of  the 
colonists,  such  a  Declaration  would  break  the  bonds  of  allegiance  to  England, 
create  of  the  erstwhile  colonies  free  and  independent  States,  and  in  the  ab- 
sence of  a  superior  they  would  Ije  obliged  to  devise  some  form  of  agreement 
and  cooperation;  otherwise  their  erforts  would  Ijc  unavailing.  It  was  further 
foreseen  by  some  i.i  the  Congress  that  the  resort  to  arms  would  lead  inevitably 
to  independence,  and  that  some  agreement  upon  a  union  and  a  method  of  gov- 
ernment should  precede  any  declaration  as  it  would  inc\ital<ly  have  to  follow  it. 
The  shrewdest  mind  in  the  country,  and  therefore  in  the  Congress,  was.  it 
need  hardly  be  said,  Benjamin  Eranklin,  and  he  was  rrridy  w-th  ^  "  plan  "  in 
1775  as  he  had  been  ready  with  a  plan  of  union  twenty-one  j  s  e.nrlicr  at 
the  first  Congress  of  the  colonics  at  .cUbany.     Therefore,  on  ]u\y  21,  1775,  he 


16 


Tin;  iMTED  states:  a  study  in  international  organization 


Dr.  Franklin's 
Second  i'lan 


laid  his  second  plan  before  Congress,  providing  for  a  union  of  the  colonies, 
soon  to  1)0  independent  States.'  But  the  Congress,  apparently,  did  not  then 
measure  aright  the  consequences  of  standing  by  Massachusetts  in  its  armed 
resistance. 

Dr.  Franklin's  plan  provided  for  the  union  of  the  colonies  for  purposes  of 
resistance  against  'Great  Britain,  but  apparently  contemplated  the  possibility 
of  a  redre.is  of  grievances  and  a  reconciliation  with  the  mother  country,  where- 
upon the  'jolonies  were  to  "  return  to  their  former  connexion  and  ft  I'ndship 
with  Britain.  "  It  was,  however,  foreseen  by  the  venerable  statesman,  because 
of  his  intercourse  with  British  men  of  affairs  and  his  knowledge  of  the  British 
people,  that  the  reconciliation  might  not  take  place,  and  the  last  clause  of  his 
plan  therefore  nms:  "  But  on  Failure  thereof  this  Confederation  is  to  be 
perpetual."  - 

Xotwithstanding  the  fact  that  his  project  was  one  primarily  for  colonies, 
not  for  States,  the  union  which  he  proposed  was  of  a  very  close  nature,  and 
would  have  rested  upon  the  people  rather  than  upon  the  colonies,  although  the 
ri.i^lUs  of  the  colonies  as  such,  or  rather  of  the  people  within  the  colonies,  were 
safeguarded.  P'or  example,  there  was  to  be  a  general  congress,  composed  of 
delegates  selected  by  each  colony,  but  the  numl)er  thereof  for  each  was  to  de- 
pend upon  the  population  of  the  colony,  and  a  dekgate  was  to  l)e  allowed  for 
everv  five  thousand  male  inhabitants,  or,  as  the  good  Doctor  put  it,  "  male 
polls  between  sixteen  and  sixty  years  of  age."  The  congress  composed  in  this 
way  would  not  rejiresent  solely  the  colonies  but  the  people  who  happened  to 
reside  within  their  territorial  limits,  and  as  the  Congress  was  therefore  the 
representative  of  the  peojile  it  was  natural  that  the  Congress  should  l>e  em- 
powered to  provide  for  the  general  welfare  and  to  enact  laws  for  this  purpose. 
It  was  to  l)e  the  power  and  the  duty  of  Congress,  liy  Article  V,  to  pass  upon 
questions  of  war  and  peace,  to  send  and  to  receive  amb...,sadors  and  to  con- 
tract alliances,  to  settle  all  disputes  and  differences  l)etween  the  colonics,  and, 
apparently,  as  an  afterthought,  for  it  is  in  brackets,  to  bring  about  "  ( the  recon- 
ciliation with  (jreat  Britain)."  The  Congress  also  was,  in  Dr.  Franklin's  lan- 
guage, to  plant  new  colonies  when  proper.  It  was  also  to  make  "  such  general 
ordinances  as.  though  necessary  to  the  general  welfare,  particular  .\ssemblies 
canncii  be  competent  to,"  and  anumg  these  he  s])ecified  "  those  that  may  relate 
to  our  general  commerce,  or  general  currency:  the  establishment  of  posts;  and 
the  regulation  of  mir  coiiunou  forces."  The  Congress  also  was  to  appoint 
"  all  treiieral  nfticers  civil  ;uid  niilit.iry.  aiipertaiiiing  to  the  general  confederacy, 
such  ;is  general  trca>urer,  secretary.  &c."  .As  representation  in  the  Congress 
was  to  be  based  ujvin  population,  not  upon  the  co'':ii'.'S  as  such,  it  was  natural 


'  Sm\lh,  H'rtliiuis  ,>f  [hniamiti  Iranklin,  Vul.  vi,  p.  4 
^  Smytli.  p.  425  ;  Sp.-irks.  p    96. 


Sparks.  Vol.  v.  p.  91. 


RISE  OF  THE   IDEA  OF   UNION 


17 


that  the  inhal/itants  having  the  largest  representation  should  also  Ijear  a  larger 
proportion  of  the  burdens  of  government.  Therefore,  charges  of  war,  "  and 
all  other  general  »xpenses  to  be  incurred  for  the  common  welfare  "  were  to  tw 
"defrayed  om:  •>  ,.  .-w.imion  treasury  .  .  .  to  l)e  supplied  by  each  colony  in 
proportion  ■>  it^  nnml.rr  (/f ;.;  ile  polls  l)etween  sixteen  and  sixty  years  of  age," 
and  the  prr  vicn  of  each  olony  was  "  to  be  laid  and  levied  by  the  laws  of 
each  colon\ 

As  still  turtlici-  sue  V. '11,-^  the  continental  as  distinct  from  the  colonial  idea, 
the  (|uorum  of  the  Congress  was  to  consist  of  "  one  half  of  the  members,"  and 
in  the  Congress  itself  and  in  the  transaction  of  business  each  delegate  was  to 
"  have  a  vote  in  all  case>."  The  delegates  to  the  Congress  were  to  l)e  elected 
annually  and  to  meet  at  such  time  and  place  as  shouUl  Iw  agreed  to  in  the  next 
preceding  Congress  by  rotation  in  the  different  colonies.  In  addition  there 
was  to  be  an  executive  council,  appointed  by  the  Congress  out  of  its  own  body, 
to  consist  of  twelve  persons,  and  which  was  apparently  to  represent  the  Con- 
gress during  its  recess,  "  to  execute  what  shall  have  Wan  enjoined  thereby;  to 
man.ige  the  general  ContineiUal  business  and  interests:  to  recei\e  ajiplications 
fn.m  foreign  countries;  to  prepare  matters  for  the  consideration  of  the  Con- 
gress; tn  till  lip,  pro  tempore,  continental  offices  that  fall  vacant;  and  to  draw 
on  the  general  treasurer  for  such  moneys  as  may  be  necessary  for  general 
services,  appropriated  by  the  Congress  to  such  services." 

It  has  Wtn  stated  that  the  existence  of  the  colonies  was  recognized,  al- 
though they  were  not  made  the  basis  of  representation  and  they  were  ajjpar- 
eiitly  to  be  denied  an  equal  share  in  proxiding  for  the  general  welfare,  for 
which  purpose  the  plan  of  government  was  proposed.  Dr.  Franklin's  further 
views  are  set  forth  in  the  third  .Article,  which  reads : 

Tliat  each  Colony  shall  enjov  and  retain  as  much  as  it  mav  thiiil<  fit  of  its 
ovyn  present  Laws.  Customs.  Riijlns.  Privileges,  and  pcniliar  jurisdictions 
within  Its  own  Limits ;  and  may  anund  its  own  Constitution  as  shall  seem  best 
to  Its  own  Assembly  or  Convention.' 

The  plan  in  all  its  p.->rts  flisplays  not  merely  a  kxen  and  penetrating  mind 
but  shows  its  author  to  In;  a  resident  of  a  large  and  populous  State,  which 
could  safely  entrust  its  interest  to  a  general  assembly  in  the  full  knowledge  that 
Its  greatness,  its  extent  and  its  power  would  secure  it  an  ample  return  for  the 
concessions,  alway.  more  specious  than  real,  of  great  l)odies  and  of  great 
persons.  The  little  States  apparently  did  not  take  kindlv  to  the  plan  of  the 
great  Doctor;  for  although  read  by  its  author  to  the  Congress  on  fuly  _'l, 
l/"7.\  it  was  neither  adopted  nor  considered.  There  is  no  record  in  the  lournal 
of  the  Congress  of  its  having  been  read,  and  indeed  the  onlv  testimonv  we 
have  to  that  effect  is  the  endorsement  in  Dr.  Franklin's  hand  that  it  was"read 
1  Smyth.  iHd..  p.  421 ;  Sj.ar'-:s,  Vu!.  \.  p.  92. 


18 


THE    LNITED  STATES:    A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


before  Congress  on  the  stated  date.  It  is  mentioned,  however,  in  this  connec- 
tion, for  a  twofold  reason:  to  show  that  in  July,  1775,  a  shrewd  man  of  the 
world,  who  had  suffered  indignities  at  the  hands  of  the  British  Government, 
was  contented  with  a  temporary  union  of  the  colonies,  in  the  hope  of  a  recon- 
ciliation with  the  mother  country  instead  of  advocating  separation  irom  Great 
Britain,  and  because  Dr.  Franklin's  text  seems  to  have  been  known  to  his 
friend  and  colleague  John  Dickinson,  who  a  year  later,  as  chairman  of  the 
committee  formed  for  that  purpose,  prepared  and  presented  a  draft  of  the 
Articles  of  Confederation,  after  the  independence  of  the  colonies  had  been 
proclaimed. 


II 

INDEPENDENCE  DECLARED 

The  archbishop  of  Canterbury  (Laud)  kept  a  jealous  eye  over  New-England.  One 
Burdett  of  Piscataqua  was  his  correspondent.  A  copy  of  a  letter  to  the  archbishop  wrote 
by  Burdett  was  found  in  his  study  and  to  this  effect,  viz.  "  That  he  delayed  going  to  Eng- 
land that  he  might  fully  inform  himself  of  the  state  of  the  place  as  to  allegiance,  for  it  was 
not  new  discipline  which  was  aimed  at  but  sovereignty,  and  that  it  was  accounted  perjury 
and  treason  in  their  general  court  to  speak  of  appeals  to  the  King."  (Thomas  Hutchinson, 
The  History  of  the  Colony  of  Massachusets-Day,  Vol.  I,  tyt^,  />.  86.) 

There  were  no  reason  that  one  man  should  take  upon  him  to  be  lord  or  judge  over 
another;  because,  although  there  be  according  to  the  opinion  of  some  very  great  and  judicious 
men  a  kind  of  natural  right  in  the  noble,  wise,  and  virtuous,  to  govern  them  which  are 
of  servile  disposition ;  nevertheless  for  manifestation  oi'  this  their  right,  and  men's  more 
peaceable  contentment  on  both  sides,  the  assent  of  them  who  arc  to  be  governed  seemeth 
necessary.  (Richard  Hooker,  Of  the  Laws  of  Ecclesiastical  Polity,  tS94,  Chvrch  edition, 
1868,  Book  I,  Section  10,  p.  54.) 

For  there  are  no  E.^camples  so  frequent  in  History,  both  sacred  and  prophane,  as  those 
of  .Men  withdrawing  thcmsehes,  and  their  Obedience,  from  the  Jurisdiction  they  were  born 
under,  and  the  Family  or  Community  they  were  bred  1  p  in,  and  setting  up  nen'  Govern- 
ments in  other  Places ;  from  whence  sprang  all  that  number  of  petty  Commonwealths  in 
the  Beginning  of  .Ages,  and  which  always  multiplied,  as  lorg  as  there  was  room  enough, 
till  the  stronger,  or  more  fortunate,  swallowed  the  weaker ;  and  ie  great  ones  again 
breaking  to  Pieces,  dissolved  into  lesser  Dominions.     (John  I.ock-e.  Treatises  of  Gov- 

ernment, J690,  Book  //,  Ch.  VUI,  section  115.  Works.  Edition  of  171,      'ol.  II.) 


,  ._  ,..^ _ „.,,  —     J they 

are  thus  incorporated,  might  sit  up  what  Form  of  Govcrnme"t  they  tlionght  tit.  {John 
Locke,  Tno  Treatises  of  Government,  /6yo,  Book  II,  Ch.  I' III,  sc  '.on  :o6.  Works,  Edition  of 
1714.  Vol.  II.) 

Men  being,  as  has  been  said,  by  Nature,  all  free,  equal,  and  independent,  no  one  can 
be  put  out  of  this  Estate,  and  subjected  to  the  political  Power  of  anotlKT.  without  his 
own  Consent.  The  only  Way  whereby  any  one  devests  liimself  of  his  natural  Liberty, 
and  puts  on  the  Bonds  of  cir-il  Society  is  by  agreeing  with  other  Men  to  joyn  and  unite 
into  a  Community,  for  their  comfortable,  safe,  and  pvaciaMe  Living  one  amongst  another, 
in  a  secure  Enjoyment  of  their  Properties,  and  a  greater  .Sccuritv  ajainst  anv,  that  are 
not  of  it.  (John  Locke,  Two  Treatises  of  Coventment,  /.V,  Book  11.  Ch.  i'jil,  section 
95.  Works.  Edition  of  1714,  Vol.  II.) 

Section  1.  That  all  men  are  by  nature  equally  free  and  independent,  and  have  certain 
inherent  rights,  of  which,  when  they  enter  into  a  state  of  society,  they  cannot,  by  any 
compact,  deprive  or  divest  their  posterity:  namely,  the  enjoyment  of  life  and  lilicrty,  with 
the  means  of  acquiring  and  ptjssessing  property,  and  pursuing  and  obtaining  happiness  and 
safety. 

Sec  2.  That  all  power  is  vested  in.  and  consequently  derived  from,  the  people;  that 
magistrates  are  their  trustees  and  servants,  and  at  all  times  amenable  to  them. 

Sec.  3.  That  government  is,  or  ought  to  be,  instituted  for  the  common  l)cnelit,  protection, 
and  security  of  the  people,  nation,  or  community;  of  all  the  various  modes  and  forms  of 
government,  that  is  best  which  is  capable  of  producing  the  greatest  degree  of  happiness  and 
safety,  and  is  most  effectually  secured  against  vi  ,  danger  of  maladministration;  an<l  that, 
when  any  government  shall  l)e  found  inadequate  or  contrary  to  these  purposes,  a  majority 
"f  the  community  h.ith  .in  indf.hit.Tlili'  inalieraf'.i".  and  indffrasiWv  riJibt  to  r-f'-rrr  "titer, 
or  abolish  it,  in  such  manner  as  shall  be  iudged  most  conducive  to  the  public  weal.  (I'irginia 
Bill  of  Rinhts  adopted  June  11,  1776.    Ben:  Perley  Poorc,  The  Federal  and  State  Constitu- 

19 


20 


THE   UNITED  STATES:  A  STUDY   IN   INTERNATIONAL 


VIZATION 


tioHs,  Colonial  Charters,  and  other  Organic  Laws  of  the  United 


jles.  Part  11,  1S77,  pp. 


We.  thcreJnre,  the  Representatives  of  the  unrted  States  of  America,  in  General  Congress. 
Assembled,  appealing  to  the  Supreme  JiuIko  of  the  world  for  the  rectitiulo  of  our  intcntimis. 
do.  in  the  Name,  .ind  by  Authority  of  the  good  People  of  these  Colonies,  solemnly  pntilish 
and  declare.  That  these  I'iMtcd  Colonies  are,  and  of  Right  ouqIu  ti  he  I'rec  arid  Independent 
States :  that  they  are  .-Vbsolvcd  from  all  Allegiance  to  the  British  Crown,  and  that  all  political 
connection  hctvvitn  them  and  the  State  of  Great  Britain,  is  and  ought  to  l>e  totally  dissolved; 
and  that  as  Free  and  Inderendent  States,  they  have  full  power  to  levy  War.  conclude 
Peace,  contract  Alliances,  establish  Commerc^  and  to  do  all  other  Acts  and  Things  which 
Independent  States  may  of  right  do.  .And  for  the  support  of  this  Declaration,  with  a  firm 
reliance  on  the  Protection  of  Divine  Providence,  we  mutually  plcd.ge  to  each  ntlier  our 
Lives,  our  Fortunes  and  our  sacred  Honor.  {The  unanimous  Declaratioit  of  Indcfenclence 
of  the  ihirli-en  united  Slates  of  America,  in  Congress,  July  4,  1776,  Revised  Statutes  of  the 
United  States,  1S7S,  p.  5.) 

The  writer  whose  ideas  and  phrases  are  most  deeply  imp.essed  upon  American  political 
history  is,  beyond  all  doubt,  John  Locke.  It  is  not  difficult  to  explain  the  cause  of  his  groat 
influence.  His  "Treatise  on  Government."  published  in  1690.  was  a  justifl'-afion  of  the 
Revolution  of  1688.  The  principles  of  that  Revolution,  as  expounded  by  him,  became  the 
orthodox  Whig  doctrine.  "His  treatise,"  says  Mr.  Leslie  Stephen,  in  his  able  "History  oi 
English  Thought  in  the  Eighteenth  Century."  "became  the  political  bible  of  the  following 
century."  Hallam  says  that  it  opened  a  new  era  of  political  opinion  in  Europe,  and  that 
the  theory  there  propounded  has  been  fertile  of  great  revolutions  and  perhaps  pregnant 
with  more. 

From  the  1-eginniiig  of  their  dispute  with  England,  the  colonists  found  themselves  fully 
sustained  by  the  great  Whig  philosopher.  What  could  he  more  acceptable  than  the  doctrine 
that  a  people  are  absolved  from  obedience  when  illegal  attempts  are  made  upon  their  liber- 
ties, and  that  it  is  then  their  duty  to  make  an  appeal  to  heaven?  When  the  colonics  in  1776 
formed  their  Bills  of  Rights,  the  great  authority  as  to  those  rights  was  Ixicke.  The  Bills 
of  Rights  of  MassachuseHs,  Pennsylvania,  Maryland,  and  other  States  set  forth,  almost  in 
the  exact  language  of  Locke,  that  "  all  government  of  right  originates  from  the  people,  is 
founded  in  compact  .mly,  and  instituted  solely  for  the  good  of  the  whole." 

The  Declaration  of  Independence,  which  has  long  ago  been  apoflieosi7ed.  did  not  escape 
contemporary  criticism.  Adams  said  that  it  was  a  commonplace  compilatKm.  Richard 
Henry  Lee  charged  that  it  was  copied  from  Locke's  treatise  on  Government.  To  tliis 
charge  it  is  certainly  open.  All  those  truths  which  the  Declaration  holds  to  be  self-evident 
are  set  forth  with  just  as  much  clearness  and  force  in  Locke's  treatise.  (If.  T.  Prantly, 
Of  the  Influence  of  European  Speculation  in  the  Formation  of  the  Federal  Constitution, 
1II80,  in  Southern  Law  Review,  Xew  Series,  yol.   VI,  pp.  35^-353.) 

The  doctrine  of  the  equality  of  all  men,  which  is  so  striking  in  the  Declaration  was 
accepted  without  controversy.  This  acquiescence  was  partly  due  to  the  condition  of  the 
country  as  a  settlement  m  a  wilderness.  Before  the  Revolution,  a  common  characteristic  of 
all  the  colonies  was  the  essential  equality  of  the  people  It  is  sometimes  said,  however 
that  we  derived  the  doctrine  of  tl'c  equality  of  mankind  fr.im  a  French  source  Sir  Henry 
Maine  observes,  in  his  "  Ancient  Law,"  that  the  opinions  then  fashionable  in  France 
led  Jefferson  to  join  what  he  denominates  the  specially  French  assumption  :hat  all  men 
are  born  equal,  with  the  assumption,  more  familiar  to  Englishmen,  that  all  men  are  born 
tree.  .\Ir.  Morley.  in  the  l-orlnii^hlh  Re;wc  for  October,  187<).  declares  that  "nobody 
who  has  examined  so  much  as  the  surface  of  the  question  would  dream  of  denying  that  the 
1-rench  theories  of  s.xiety  played  an  imp  .nt  part  in  the  preparation  of  American  in- 
deiwndence.  ((I  .  T.  tSrantly,  Of  the  Influence  of  European  Speculation  in  the  Formation 
of  the  lederal  Constilulion,  liiSo,  in  Southern  Law  Review.  Xew  Series,  Vol  VI  pp 
SS3-3i4)  ' 

It  is  true  that  Jefferson  afterwards  "-drank  a  deep  draught  from  the  intoxicating  cup 
ot  tile  Ireiich  Revolution. '  biH  we  do  not  think  that  in  1776  he  had  felt  the  French 
political  inliuence.  He  was,  we  know,  a  student  of  Locke,  and  Locke  asserted  the  natural 
equality  of  man  as  strongly  as  his  natural  liberty.  In  Jefferson's  original  draft  of  the 
Declaration,  now  in  the  State  Department,  we  see  that  he  first  wrote  "all  men  are  created 
equal  and  independent."  and  afterwards  erased  the  words  "and  independent."  In  the 
second  chapter  of  the  "Treatise  on  Government."  Locke  says:  "To  understand  political 
power  anghj,  we  miirt  lintier-t.-ti-d  what  slate  men  arc  naturaliy  in.  and  itial  is  a  stale 
of  perfect  freedom.  ...  A  state  also  of  equality.  ...  In  the  state  of  nature,  men  are  all 
equal  and  independent,"— the  very  phrase  first  employed   by  Jefferson.     \lV.   T    Brantly 


INDEPENDENCE   DECLARED 


21 


of  the  InHuence  of  European  Speculation  in  the  Pormatinn  of  the  Federal  Constilution, 
iSSo,  in  Southern  Lav  Review,  New  Series,  Vol.  Vl.  p.  3^4.) 

The  Declaration  of  Indepenilence  is  singularly  snggestive  of  the  Virifinia  Bill  of  Rights 
which  was  adopted  on  June  12,  1776.  Thiy  are  lioth  streams  fnni  the  same  prolific  fo\m- 
tain.  The  first  article  of  the  Virginia  Bill  declares,  "that  all  men  arc  by  nature  equally 
free  and  independent,  and  have  certain  inherent  riphts  the  which,  when  they  enter  into 
a  stnte  of  society,  they  cannot,  by  any  compact,  deprive  or  divest  their  posterity, —  namely, 
the  enjoyinent  of  life  and  liberty  with  the  means  of  acquiring  and  possessing  pro|>erty 
and  pursuing  and  obtaining  happiness  and  safety."  The  Virginia  Bill  was  the  work  of 
(ieorge  Mason,  a  man  deeply  versed  in  Knglish  parliamentary  history,  but  who  was  not 
indebted  for  any  of  his  opinions  to  French  literary  men.  (/('.  T.  Bra  'ly.  Of  llie  InHucnce 
of  European  Speculation  in  the  Formation  of  the  Federal  Constitution,  1S80,  in  Southern 
Law  Rerieu\  Xew  Series,  Vol.  I' I.  p.  354.) 

The  origin  of  the  idea  of  a  state  of  nature  wherein  all  men  are  equal  has  been  traced  to 
the  Roman  lawyers.  Locke  recencd  it  from  Hobbes  and  Grotius.  But  it  was  so  stamped 
with  the  authority  of  the  Whig  philosopher  that  it  colored  all  the  political  thinking  of  the 
last  century  in  .America.  The  conception  of  man  as  the  signatary  of  a  social  compact  is 
an  absurd  one,  and  has  long  since  fallen  into  disrepute  with  the  best  thinkers.  Hume's 
refutation  of  the  theory  is  complete,  but  it  is  not  without  advocates  at  the  present  day.  Sir 
Henry  Maine  is  astonished  at  the  extraordinary  vitality  of  this  specidative  error.  The 
circumstance  that  the  Bills  of  Rights  of  so  many  of  these  States  continue  to  assert  in 
terms  that  all  government  is  founded  in  compact,  may  serve  to  show  us  that  tlie  value 
of  a  sonorous  maxim  in  politics  is  not  proportioned  to  its  credit  with  philosophers,  ill'.  T. 
Brantly,  Of  the  Influence  of  European  Speculation  in  the  Formation  of  the  Federal  Con- 
stitution, iSSo,  in  Southern  Law  Review,  Xew  Scries,  I'ol,   11.  pp,  3i7-35li) 

That  there  were  thirteen  colonies,  with  separate  governments  in  each,  without  any  control 
by  one  over  another,  is  admitted;  that  they  assembled  by  diflfercnt  representations;  that  they 
voted,  acted,  and  signed  the  declaration  by  their  separate  delegates,  is  apparent  on  the 
journals  of  congress,  and  the  face  of  the  pai)er.  The  members  who  assembled  as  the 
delegates  of  colonies,  were  the  same,  who.  as  tlie  representatives  of  the  states,  made  the 
declaration  in  the  name,  and  by  the  authority  of  the  good  people  of  these  colonies:  which 
was : — "  That  these  united  colonies  arc.  and  of  right  ought  to  t)e.  free  and  independent  states." 
(.Ur.  Justice  Lialdn'in,  A  General  I'iew  of  the  Origin  and  Xature  of  the  Constitution 
and  GoiernmenI  of  the  United  Slates,  1S37,  p.  7S.) 


CHAPTER  II 


INDEPENDENCE   DECLARED 


The  Funda* 
mentU  Right 


Colonial 
View 


Imperial 
View 


On  July  4.  1776,  the  representatives  of  the  United  States  of  America  in 
Congress  assembled  proclaimed  their  independence  in  a  declaration  setting 
forth  the  right  and  the  duty  of  all  peoples  to  organize  themselves  into  nations, 
with  governments  of  their  own  choice,  to  change  those  forms  of  government 
when  they  have  not  subserved  the  purpose  for  which  they  were  created  by 
the  peoples,  and  submitted  facts  to  a  candid  world  justifying  the  Declaration 
of  Independence  in  their  particular  case.  With  the  facts  submitted  by  the 
Congress  to  a  candid  world  we  are  not  here  concerned.  We  are,  however, 
concerned  with  the  right  to  set  up  a  government  for  themselves,  which  the 
signers  of  the  Declaration  asserted,  claimed  and  exercised.  For,  if  the  right 
exist,  its  exercise  becomes  a  matter  of  expediency,  and  the  facts  merely  the 
cause  or  pretext  of  its  exercise  by  peoples  bent  on  exercising  the  right. 

Before  dealing  with  this  matter,  it  is  advisable  to  advert  to  the  state  of 
things  which  produced  the  Declaration  and  called  into  being  the  United  States 
of  .America.  The  thirteen  American  colonies  forming  the  original  thirteen 
United  States  and  extending  from  Florida,  on  tl.e  south,  to  Canada,  on  the 
north,  were  either  settled  originally  by  British  subjects  or  had  passed  into  the 
possession  of  Great  Britain.  These  colonies,  whether  under  a  charter  such  as 
Connecticut:  under  a  charter  to  a  proprietor  as  in  the  case  of  Maryland;  or 
governed  directly  as  a  province  by  the  crown  as  Virginia,  claimed  the  right 
of  local  self-government  by  means  of  as.semblies  of  their  own  choice:  for,  to 
quote  Sir  John  Seeley,  "  assemblies  were  not  formally  instituted,  but  grew  up 
of  thtmselves,  because  it  was  the  nature  of  Englishmen  to  assemble."  ' 
..ec(>,2;nizing  tliem>clves  as  subjects  of  the  mother  country,  provided  such 
regulation  was  external  and  they  were  left  to  settle  their  internal  aflfairs  as 
seemed  to  them  to  be  just  in  view  of  local  conditions,  with  which  they  were 
familiar  and  of  which  they  felt  that  the  mother  country  was  not  cognizant, 
naturally,  the  colonists  looked  at  their  relations  with  the  mother  country  from 
the  colonial  point  of  view.  The  recognition  that  there  was  a  mother  country 
implied  another  point  of  view,  which  did  in  fact  exist. 

Great  Britain  held  that  the  colonists  wer>.  P>ritish  subjects  and  possessed 
of  the  rights  and  liberties  of  such :  that  the  colonists  could  have  no  greater 
rights  than  British  subjects,  and  that,  as  such,  they  were  subject  to  the  Crown, 
the  Parliament,  or  1x)th,  as  were  their  fellow-countrymen  of  Great  Britain; 
that  the  colonies  were,  as  trading  companies  and  bodies  poliiic,  entitled  to 

»  Sir  John  Robert  Seclcy,  The  Hxpansion  of  E>t<;liind,  1883.  p.  67. 

22 


INDEPENDENCE  DECLARED 


23 


make  laws  within  the  charter  but  not  ultra  vires,  and  therefore  subordinated 
to  the  law  ami  the  control  of  their  creator ;  that,  as  colonists,  they  were  subject 
to  the  burdens  of  the  empire,  as  were  their  fellow-countrymen  at  home,  and 
as  colonies  they  were  subject  to  regulation  and  control,  internal  as  well  as 
external;  that  the  nature  ami  extent  of  the  duties  to  lie  imposed  upon  the 
colonists  and  the  supervision  and  control  of  the  colonies  were  matters  of 
expediency,  to  l)e  determined  by  the  Xing,  Lords  and  Commons  of  Great 
Britain,  the  supreme  authority  in  all  matters  domestic,  colonial,  foreign.  As 
was  natural,  the  mother  conntn.-  looked  upon  its  relations  with  the  colonies 
from  the  standpoint  of  tlx;  empire. 

The  colonists,  if  admitting  these  rights  in  point  of  law,  were  unwilling  to 
allow  the  mother  country  to  exercise  them  in  fact  or  to  determine  the  matter 
of  expediency.  The  mother  country,  possessing  the  rights,  was  unwilling  to 
allow  the  colonists  to  determine  the  expediency  of  their  exercise.  There  was 
no  indifferent  party  to  which  the  colonists  could,  or  to  which  the  mother  coim- 
try  would,  submit  their  differences.  Each,  therefore,  appealed  eventually  to 
the  arbitrament  of  the  sword. 

To  obviate  the  resort  to  force  which  lurked  in  the  background,  the  colonists 
petitioned  the  Crown,  the  Parliament  and  the  people  of  Great  Britain  for  a 
redress  of  grievances,  and,  conscious  that  the  cause  of  each  was  the  cause  of 
every  colony,  a  congress  of  their  delegates  assembled  in  1774,  in  Philadelphia, 
just  as  Hutchinson  happily  said  that,  in  1619,  "  a  house  of  burgesses  broke 
out  in  V'irginia."  This  assembly,  extending  beyond  the  confines  of  a  colony 
and  affecting  the  destinies  of  a  continent,  they  aptly  called  a  Continental  Con- 
gress, and  the  first  of  these  lK)dics,  composed  of  representatives  of  all  the  col- 
onies, with  the  exception  of  Georgia,  met,  in  1/74,  in  the  city  of  Philadelphia 
in  the  month  of  September. 

As  the  blow  which  threatened  ?]\  the  colonies  had  first  fallen  in  Massa- 
chusetts, it  was  natural  that  that  jirovince  should  have  taken  the  initiative. 
Therefore,  on  June  17,  1774,  one  year  to  a  day  before  the  battle  of  Bunker 
Hill,  the  Massachusetts  House  of  Representatives,  under  the  leadership  of 
Samuel  .-\dams,  resolved : 

That  a  meeting  of  Committees  from  the  several  Colonies  on  this  Continent 
is  highly  expedient  and  necessan,-,  to  consult  ujion  the  present  state  of  the 
Colonics,  and  the  miseries  to  wliicli  they  are  and  nuist  be  reduced  by  the 
operation  of  certain  acts  of  Parliament  rc^ppcting  .-\nierica.  and  to  deliberate 
and  determine  upon  wise  and  proper  measures,  to  be  by  them  recommended 
to  all  the  Colonies,  for  the  recovery  and  establishment  of  their  just  rights  & 
liberties,  civil  &  religious,  and  the  restoration  of  union  ^-  harnionv  i>et\veen 
Great  Britain  and  the  Colonies,  most  ardently  desired  by  all  good  men. 
Therefore,  Resolved,  that  »!'e  Hon"'"'.  James  Howdoin,  esq'.,  the  Hon*"'". 
Thomas  Cushing,  esq'.,  Mr.  Samuel  .Adams,  John  .Adams,  &  Robert  Treat 
Paine,  c^q"".,  i)c,  and  ilicy  are  hereby  appointed  a  Coninilucf  on  the  part  of 
this  province,  for  the  jmrposes  aforesaid,  any  three  of  whom  to  be  a  quorum, 
to  meet  such  committees  or  delegates  from  the  other  Colonies  as  have  been  or 


A  Continental 
Congress 


24 


TIIK    INlTlil)   SIATKS:    A    SUDY    *N    INTERNATIONAL   ORGANIZATION 


Drclara- 
tton  and 
Resolves 


may  be  appointed,  cither  by  their  respective  houses  of  Burgesses,  or  represen- 
tatives, or  by  convention,  or  l)y  the  committees  of  correspondence  appointed 
by  the  respective  houses  of  Assembly,  in  the  city  of  I'hiladelphia,  or  any 
other  place  tiiat  shall  be  judged  n'ost  suitable  by  the  Committee,  on  the  irst 
day  of  Septeml)cr  next;  &  that  the  Speaker  of  the  House  be  directed,  .n  a 
letter  to  the  s|)cakcrs  of  the  houses  of  Hurgesses  or  representatives  in  the 
several  Colonies,  to  inform  them  of  the  substance  of  these  Resolves.' 

On  SeptenilKjr  5th  the  delegates  of  all  but  three  colonies  met.  On  the  14th 
those  of  North  Carolina  appeared.  The  Congress  organized  with  Peyton 
Randolph,  of  \'irginia,  as  I'resident.  On  September  7th  a  committee,  consist- 
ing of  two  meiiil)ers  from  each  colony,  was  appointed  "  to  State  the  rights  of 
the  Colonies  in  general,  the  several  instances  in  which  those  rights  are  violated 
or  infringed,  and  the  means  most  proper  to  \k  pursued  for  obtaining  a  restora- 
tion of  them."  And  it  was  decided  "  tliat  the  Congress  do  confine  themselves, 
at  present,  to  the  consideration  of  such  rights  only  as  have  been  infringed  by 
acts  of  the  British  parliament  since  the  year  1763."  ^ 

In  this  the  colonists  were  well  advised,  for  1763  marked  an  epoch  in  the 
relations  Ijetween  .America  and  Great  Britain.  Before  that  date  the  colonies 
had  been  looked  upon  as  separate  and  distinct  plantations,  to  be  protected, 
if  need  be,  against  the  aggression  of  France  from  the  north  in  Canada  and  the 
west  in  Louisiana.  The  coiuiuest  of  Canada,  in  which  the  colonies  partici- 
pated, and  its  cession  by  the  treaty  of  1763  to  Great  Britain,  the  cession  of 
Louisiana  to  Spain  and  the  recognition  of  the  Mississippi  as  the  boundary, 
caused  the  Crown  and  its  advisers,  apparently  for  the  first  time,  to  consider 
the  colonies  as  a  unit  and  to  govern  them  as  such,  and,  in  pursuance  of  this 
pnlicy,  to  pass  the  various  statutes  whereof  the  colonists  complained. 

Ihey  therefore  adopted  a  declaration.  On  Octol)er  14th  a  rejwrt  on  the 
rights  and  grievances  of  the  colonies  was  adopted,  known  as  the  Declaration 
and  Resolves  of  the  First  Continental  Congress.' 

The  declaration  consists  of  eleven  resolutions  framed  by  representatives  of 
"  the  good  people  of  the  several  Colonies  "  with  the  exception  of  Georgia 
which,  however,  was  later  to  lie  represented  in  the  Congress.  The  first  ten 
of  the  resolutions  state  the  rights  of  the  colonies  as  their  respective  representa- 
tives believed  them  to  be  on  the  eve  of  the  Revolution,  and  the  eleventh  is  an 
enumeration  of  the  acts  of  parlirment  which  they  considered  ^o  be  inconsist- 
ent with  the  declaration  of  rights  and  which  therefore  should  be  repealed  "  in 
order  to  restore  harmony  Ix-tween  Great  Britain  and  the  American  colonies." 
The  preamble  asserts  that  Parliament  has  claimed  "  a  power  of  right  to  bind 
the  pe(jple  of  America,  by  statute  in  all  cases  whatsoever,"  that  Parliament 

^Jnunioh  of  the  Conlini-iila!  Coni/ress  (1904—'),  Vol.  i,  pp.  13-16.  For  documents  and 
correspondencf  relatinp  to  proceedings  of  the  Contincnt.il  Congress  and  the  Colonial  Con- 
(jr<"s>^e'.  see  also  '"orce's  American  Archives,  Faurlk  Si-rifs,  !R,?7. 

*  :hid.,  p.  42. 

^  Ibid.,  pp.  63-73. 


^^0 


INDEPENDENCE  DECLARED 


2S 


had  "in  some  acts  expressly  imposed  ta>_*s  on  them,"  and  that  Parliament 
"  under  various  pretences,  but  in  fact  for  the  purjMise  of  raisinjj  a  revenue," 
had  "  imposed  rates  and  duties  payable  in  these  colonies."  Because  of  this 
action  on  the  part  of  Great  Britain,  the  colonies  deemed  it  essential  to  set 
forth  their  rights  in  the  premises.     Therefore  they  declared: 

That  they  were  "  entitled  to  life,  lil)erty,  &  property,"  and  that  they  had 
never  renounced  the  right  to  dispose  thereof  to  any  foreign  power  without 
their  consent ; 

That  their  ancestors  were,  at  the  time  of  their  emigration,  "  entitled  to 
all  the  rights,  liberties,  and  immunities  of  free  and  natural-ljorn  subjects, 
within  the  realm  of  England  ;  " 

That  these  rights  were  not  lost  by  emigration  and  that  their  descendants 
were  therefore  "  entitled  to  the  e.xercise  and  enjoyment  of  all  such  of  them, 
as  their  local  and  other  circumstances  enable  them  to  e.xercise  and  enjoy;  " 

That  the  inhabitants  of  the  colonies  could  not,  because  of  local  conditions, 
be  properly  represented  in  Parliament,  but  only  in  their  local  legislatures, 
where  by  their  representatixes.  they  consented  to  taxation;  recognizing,  how- 
ever, the  right  of  the  British  Parliamei.t  to  regulate  their  "  external  com- 
merce, for  the  purpose  of  securing  the  commercial  advantages  of  the  whole 
empire  to  the  mother  country,  and  the  commercial  benefits  of  its  respective 
members;  excluding  every  idea  of  taxation,  internal  or  external,  for  raising 
a  revenue  on  the  subjects,  in  America,  without  their  consent ;  " 

That  the  colonies  were  entitled  "  to  the  common  law  of  England,"  and 
more  especially  to  the  "  inestimable  privilege  "  of  trial  by  jury ; 

That  they  were  "entitled  to  the  l)encfits  of  such  of  the  English  statutes 
as  existed  at  the  time  of  their  colonization,"  and  which  had  been  found  ap- 
plicable to  local  conditions; 

That  ii  y  were  entitled  to  "all  the  immunities  and  privileges  granted  & 
confirmed  to  them  by  royal  charters,  or  secured  by  their  several  codes  of 
provincial  laws;  " 

That  they  possessed  the  right,  and  without  restraint,  peaceahlv  to  assemble, 
to  consider  their  grievances,  and  to  petition  the  kinjr  for  a  redress  thereof; 

That  the  maintenance  of  a  standing  army  in  the  colonies  in  times  of  peace 
without  the  consent  of  the  colonial  legislatures  was  against  law; 

That  the  branches  of  the  legislature  should  lie  independent  of  each  other; 
and  therefore  that  the  exercise  of  legislative  power  by  a  council  appointed  by 
the  Crown  and  serving  during  its  pleasure.  "  is  unconstitutional,  dangerous, 
and  destructive  to  the  freedom  of  American  legislation  ;  " 

And  finally,  that  these  "  their  indubitable  rights  and  liberties  "  could  not 
be  •'  legally  taken  from  them,  altered  or  abridged  by  any  power  whatever, 
without  their  own  consent,  by  their  representatives  in  their  several  provincial 
legislatures." 


1/ 


i 


26 


THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


An 
Auo- 

ciation 


This  document,  which  would  have  justified  in  itself  the  call  and  the  meet- 
ing of  the  Confjress.  does  not.  however,  stand  alone:  for  the  representatives 
of  the  colonies  did  not  content  themselves  with  a  statement  of  grievances  but 
considered  "  the  means  most  projier  to  lie  used  for  the  restoration  "  of  colonial 
rights. 

Sharing,  no  doubt,  the  view  of  John  Adams  that  the  various  Navigation 
Acts  and  Acts  of  Trade  were  the  ca-  se  of  strained  relations  leading  in  the 
end  to  revolution,  the  memliers  of  Congress  were  of  the  opinion  that  "  a  Xon- 
Iniportation,  Xon-Consumption.  and  Xon-Exportation  .Agreement,  faithfully 
adhered  to,"  would  prove  "  the  most  speedy,  effectual,  and  peaceable  measure." 
Therefore  a  report,  advocating  an  association  to  cut  off  all  trade  between 
the  colonies.  Great  Britain  and  its  other  possessions,  was  reported  on  the 
12th.  agreeil  to  on  the  18th  and  signed  on  Octulwr  20,  1774,  by  fifty-three 
nienil)ers  of  the  Congress,  by  which  they  solemnly  l)ound  themselves  and  their 
constituents  to  adhere  to  the  Association  until  the  grievances  whereof  they 
complained  were  redressed ;  and  they  recommended  it  "  to  the  provincial  con- 
ventions, and  to  the  committees  in  the  respective  colonies,  to  establish  such 
farther  regulations  as  they  may  think  proper,  for  carrying  into  execution  this 
association."  '  W  hereupon,  the  Congress  adjourned  on  Octolwr  2uth,  hav- 
ing invited  ;ili  the  colonies  to  send  delegates  to  -mother  Congress,  to  meet  on 
the  U)th  c!.-  jf  May,  1775,  unless  their  grievances  had  been  redressed  in  the 
meantime. 

It  is  to  I)e  observed  that,  although  no  union,  an  association  of  the  colones 
was  formed  which  was  rapidly  to  develop  into  a  union  in  law  as  well  as  in 
fact.  On  April  ly.  1775.  the  British  forces  in  Boston  tleemed  it  advisable  to 
seize  anil  destroy  some  powder  magazines  at  Concord  in  the  province  of  Massa- 
chusetts. The  intention  of  the  British  commander  became  known  and.  when 
his  troops  entered  the  little  town  of  Lexington  at  day-break,  on  the  way  to 
Concord,  they  found  drawn  up  a  small  Ixidy  of  provincials,  which  they  quickly 
(lis|.ersed  and  continued  their  march  to  Concord,  where  they  indeed  effected 
their  puqiDse.  but  found  larger  bodies  of  provincials  drawn  up  to  resist  them. 
B.lood  had  been  drawn  at  Lexington:  it  was  freely  shed  at  Concord,  and  be- 
fore "  the  embattled  farmers  "  the  Briti>h  troops  hurriedly  fell  back  to  avoid 
the  capture  which  threatened  them. 

When,  therefore,  the  second  Continental  Congress  met  in  Philadelphia  on 
May  10,  1775.  it  was  composed  of  representatives  of  all  the  thirteen  colonies 
including  those  of  Georgia,  which  by  this  time  had  made  up  its  mind  to  cast 
.  -  lot  with  the  other  colonies.  Peyton  Randolph  was  again  elected  President, 
but.  absenting  himself  in  Virginia  to  attend  to  matters  of  the  province,  he  was, 
on  May  24,  1775.  succeeded  by  John  Hancock  of  Massachusetts. 

I'"inding  themselves  in  the  midit  of  um.  the  colonics  in  Cungicss  accepted 
'  /ourmils  of  the  Continftilal  Congress,  VoL  i,  p.  80. 


INnEPENDENCE  DECUVRED 


27 


1 
1 


(ft 


the  gauge  of  battle  hy  electing  on  June  15th,  by  unanimous  ballot,  one  f  their 
mcmliers,  (Jeorge  Washington,  to  Ik-  cummanilfr-in-chief  of  the  armies  raised 
and  to  be  raised  in  order  that  "  the  liU-rties  of  the  country  receive  no  iletri- 
ment."  ' 

The  Congress,  recognizing  the  importance  of  this  action,  adopted  on  July  f,","|',V,'i,„ 
6,  1775,  a  carefully  |)repared  and  moderate  "  Ueclaratioii  of  the  Causes  and  i",',i',„„ 
Necessity  t>f  Taking  up  Arms,"  which  was  "  to  U*  i)ul)li>hed  by  General  Wash- 
ington  upon  his  arrival  at  the  camp  Ixjlore  15o>ton."  in  which  city  the  British 
army  was  then  l)esiegcd  by  the  provincial  troops  and  volunteers  already  pour- 
ing in  from  the  adjoining  colonies.  At  the  same  time,  every  effort  was  made 
l)y  the  Congress  to  effect  a  reconciliation  with  the  mother  country,  and  the 
declaration  of  the  6th  was  accompatiieil  on  the  Sth  by  a  |)etition  to  the  King, 
each  drafted  by  the  patriotic  yet  cautious  and  conciliatory  Dickinson. 

In  the  interval  l)etween  the  tirst  and  second  Congress,  Lord  North,  then 
Prime  Minister  of  Great  Britain,  held  out  the  olive  branch  in  the  form  of  a 
Conciliatory  Resolution  of  I'ebruary  27 .  1775,  by  the  terms  of  which  the 
Imperial  Parliament  declared  its  intention  to  abstain  from  internal  taxation, 
and  only  to  regulate  commerce,  provided  each  colony  or  province  should  con- 
tribute its  portion  "  to  the  common  defence,"  and  "  engage  to  make  provi- 
sion also  fur  the  support  of  the  Civil  Government,  and  the  Administration  of 
Justice,  in  such  I'rovince  or  Colony."  -  The  conciliator)-  act  was  meant  to  l)e 
a  concession,  not  a  surrender,  and  it  was  shortly  followed  uy  the  New  Eng- 
land Restraining  Act  of  March  30,  1775,  cutting  off  all  trade  between  the 

'  On  June  16.  177S 

Tlic  president  frnm  the  cliair  infiirnuil  Geo:  WashinRton  esq',  that  he  had  the  order  of 
the  CcMxress  to  aci|(ain)t  him,  that  the  Congros  had  by  a  iinaiiimnus  vote  made  choice  of 
him  to  he  Kcncral  and  commander  in  chief  to  take  the  supreme  cnmr.iand  ot  the  forces  raised 
and  to  be  raised,  in  defence  of  .\nierican  Liberty,  and    lesired  his  acceptance  of  it.     Where-  i 

npim  Cnliinel  Washington,  standing  in  his  place,  spoke  as  follows: 

"  Mr.  President, 

"Tho'  I  am  fndy  sensible  of  the  high  Honour  done  me.  in  this  .Appointment,  yet  I  feel 
Rreat  distress,  from  a  consciousness  that  my  alnlities  and  military  experience  may  not  be 
eiinal  to  the  extensive  and  important  Trust:  However,  as  tlie  Congress  desire  it.  I  will 
enter  upon  the  momentotis  duty,  and  exert  every  power  I  po.sess  in  their  service,  and  fnr 
siipiKirt  of  the  jilorious  cause.  I  liei;  they  will  accept  my  most  c<irdial  thanks  for  this  dis- 
tingnishcd  testimony  of  their  approbation. 

"Hut,  lest  some  unlucky  event  shr>nld  happen,  unfavourable  to  my  reputation.  I  bef?  it 
niay  be  remembered,  by  every  gentleman  in  the  rn..m,  that  I.  this  dav.  declare,  with  the  utmost 
suicerity.  I  do  not  think  myself  equal  to  the  Command  I  am  honored  with.  .  .  ."  hnirnaU, 
vol.  ii,  pp.  91-2. 

On  June  26th  the  \ew  York  Provincial  Congress  submitted  an  address  to  General  Wash- 
mgton  expressing  satisfaction  at  his  appointment.     In  the  course  of  his  reply  he  said  : 

"  M.iy  your  warmest  wishes  he  realized  in  the  success  of  America  at  this  import  int  and 
interesting  period;  and  !«  assured  that  every  exertion  of  my  worthy  colleagues  and  nuscif 
will  he  equally  extended  to  the  recstahlishment  of  peace  and  harmonv  between  the  Mother 
Country  and  these  Colonies,  as  to  the  fatal  but  necessary  operations  of  war.  When  we  as- 
sumed the  soldier  we  did  not  lay  aside  the  citizen  :  and  we  shall  most  sincerelv  ri  ioice  w  ith 
yoii  in  that  happy  hour  when  the  establishment  of  Ami-rkan  liberty,  on  the  most  firm  and 
solid  fotmdations,  shall  enable  us  t'l  nt.irn  to  our  private  stations  in  the  bosom  of  a  free, 
peaceful,  and  happy  Country."  See  J,<urn<il  nf  V.-fc  I'.iW-  I'mrircia!  Cr-icrcs  for  Tune  26, 
1775.     Here  reprinted  from. /m,r/,iiii  .(r./iitr.f.  l-ourth  Series,  1839,  Vo'.  2,  p    1322 

'Archives.  Fourth  Series,  1837.  Vol.  1,  p.  lOll. 


28 


THE   I'NITED  STATE!*:   A   STtDY    IN    INTERNATIONAL  OtOANIZATION 


colonics  and  foreign  countries  and  rcstraininR  their  trade  to  Great  Britain. 
In  April  the  s<iiifhern  colonies  were  likewise  restrained,  and  these  various 
measures  were  later  superseded  by  the  general  act  of  I)cccnil)er  22,  1775.  pro- 
hihiting  trade  and  intercourse  with  America. 

On  fnlv  31.  177.^.  the  Conpress.  in  a  report  written  by  Thomas  Jefferson, 
reierted  I.fird  N'orth's  conciliat<iry  resolution,  which  had  Ixrn  laid  Iwfore  that 
bo<ly  in  the  month  of  May.  1775.  C>n  its  part,  dreat  Britain  was  not  slow  to 
take  action.  The  baffles  of  I-exinpton  and  Concord  on  .\pril  19th  and  of 
Rnnker  Ilill  on  June  17th.  Iietween  Urifish  tnK)ps  and  the  colonists,  and  the 
apiv)intmcnf  of  Washington  as  commander-in-chief,  likewise  convinced  the 
British  fiovcrnment  that  war  was  on,  and  on  August  2.V  1775.  it  issued  a 
proclamation  of  rebellion  appropriately  ending  with  "  fiod  Save  the  King." 
The  resort  was  indeed  made  to  conciliation,  but  the  appeal  had  already  l)een 
made  to  the  swdrd.  Too  l.nte  for  the  .\merican  colonies  on  the  fontinent.  it 
was  not  too  late  to  save  the  other  colonies  which  Great  Britain  then  had  or  has 
since  acquired,  and  which  are  now  self-supiMirfing  dominions  proud  of  their 
connection  with  the  mother  country.  This  was  the  f.imous  Taxation  of  Colo- 
nio-  Act  (  l.S  C,i-n.  Ill,  c.  12)  providing  that  Parliament  "  will  not  imjHisc  any 
duty,  tax,  or  assessment  whatever,  payable  in  any  of  his  Majesty's  colonies, 
provinces,  and  plantations  in  N'orth  .\merica  or  the  West  Indies;  except  only 
such  chities  as  it  may  be  expe<lient  to  impose  for  the  regidation  of  commerce; 
the  net  produce  of  such  duties  to  In-  always  paid  and  applied  to  and  for  the  use 
of  the  colony,  province,  or  plantation,  in  which  the  same  shall  be  respectively 
levitil.  in  such  manner  as  other  duties  collected  by  the  authority  of  the  re- 
spective general  courts,  or  general  assemblies,  of  such  colonies,  provinces,  or 
plantations,  are  ordinarily  p.iid  and  applie<l."  Upon  this  act,  caused  bv  the 
n-vnlt  ni"  tlf  American  ci>lonies  and  the  attitude  of  Great  Britain  toward  it- 
ciilnnics  <jf  toda\,  a  competent  British  authority  says:  "This  renunciation 
by  tile  Imperial  Parliament  of  the  right  to  impose  taxes  upon  a  colonv.  wluilicr 
;i  -cli-ijciverning  colony  or  not.  has  passed  through  two  stages,  -nice  17S,i 
taxation  imposed  bv  an  Imperial  .Act  has  always  l)een,  even  in  ilic  case  >  i  a 
Crown  colony,  imposed  for  the  Ix'netit  of  the  colony,  and  the  proceeds  tltercuf 
have  l>een  paid  to  the  colony.  But  until  the  repeal  of  the  \'a\  ii^au.m  1  ..»\t  >  in 
ISl''  I'arliaiiunt.  in  suiiport  cf  our  whole  navigation  sy>teiii.  ritj.meil  'lie 
practice  of  imposing  duties  on  goods  iiiijiorted  into  the  colcinies,  thuupp-  the 
proceeds  thereof  were  jiaid  to  the  colonio  so  ta.xed.  Since  1K4''  '  >  lnii>erial 
Act  has  been  i)asscd  for  the  taxation  of  any  colony,  and  no  colony  i-  ronijK'lleil 
by  the  Im|)eri;il  Parliament  to  contribute  anything  in  the  wav  of  taxation 
towards  the  cost  of  the  government  of  the  United  Kingiloin  ir  towards  the 
defence  of  the  British  Empire."  ' 

\o  answer  other  than  this  proclamation  and  the  proliil)ition  "t  trade  and 

'  .-Mbert  Venn  Dicey.  Law  of  the  Coxstitulii'it,  1915  ed..  p.  x.wi,  Xote  2. 


INnr.l'KNDENC     r.ECt.AIIED 


29 


■'  '  ?l 


intercourse  with  America  was  niade  ti)  the  petition  of  Congress  of  July  K. 
1775 —  consequently,  the  last  offer  <if  reconciliation  made  i)y  Conj,'rcss.  Tli. 
meinlwrs  of  that  famous  Inidy  were  confronted  with  prudent  submission  oi 
armed  resistance,  'ihc  ipiestion  of  independeme  forced  itself  upon  them  ati'! 
the  succeedinR  months  were  devoted  to  its  considtration.  and  certain  step- 
t;>ken  Iwfore  its  declaration,  which  jiresupposed  it^  adopiioii.  Thus,  on  .\o- 
\  iiil'cr  .V  177.S,  within  four  day--  of  the  news  of  the  rcicction  of  the  iK'titioii 
to  the  Kinp,  the  Congress  recommended  the  frovincial  (cuncntion  of  New 
li.iiiipshire  "  to  call  a  full  and  free  representation  of  the  people,  and  tliat  the 
representatives,  if  they  think  it  necessary,  establish  such  a  form  of  i;m em- 
inent as,  in  their  jiidgmeiit,  will  Iicst  produce  tlie  happiness  of  the  {K'uple,  and 
tno-,t  effectually  secure  i>eace  an<l  >;oo(l  order  in  the  prosince,  durinj;  the  con- 
tinuance of  the  present  dispute  U'tween  (i|reat]  Britain  and  the  colonies.  '  ' 
\n(l  on  .May  13,  1776,  the  Conpress,  taking'  peneral  action,  resolved  "  That  it 
he  recommended  to  the  rcs|iective  assemblies  and  cuiiveiition-.  of  the  I'nited 
(iilomes.  where  no  government  sutTicient  to  the  exigencies  of  their  alTairs 
ha\e  been  intherto  established,  tn  ado|)t  such  fjovermncni  a^  -hall,  in  the 
'ipinion  of  the  rcpre-*  iitative-  of  the  [)eoi)le,  best  c<induce  to  the  hapjiiness  and 
safety  ci  their  constituents  in  particular,  and  .\merica  in  >;eneral."  ■' 

There  wa  but  one  further  step  to  take,  as  the  Con(,'res>  then  thought  an  1 
as  wc  today  see,  and  that  >tt't=  was  tinally  taken  on  July  4,  1776,  Therefore 
b\  \\a\  of  i)reparation.  Kich;-rd  Henry  I.ee,  on  behalf  of  the  delegates  from 
X'irginia.  made  the  follcwing  motion  on  June  7th: 

Til  it  these  Cnited  Colonies  arc.  and  of  right  ought  to  be.  free  and  in- 
dependent States,  that  tney  are  absolved  from  all  ,illet;i.inre  to  the  British 
Crown,  and  that  all  |x>lit;cal  connection  tittween  them  and  the  State  of  Great 
Hrit.iin  is,  and  ought  to  be,  totally  dissolved. 

That  it  is  expedient  forthwith  to  take  the  most  effectual  measures  for 
forming  foreign  Alliances. 

I  h.it  a  plan  of  confedenition  tx-  prepared  and  transmitted  to  the  respective 
Colonies  for  their  consideration  and  approbation.' 

This  motion,  appropriately  made  by  Mr.  Lee  on  liehalf  of  the  leading  southjrn 
colony,  wa.s  appropriately  seccmded  by  John  .Vdatn  ,  of  the  northern  colony 
of  Massachusetts,  (ieorge  Wa.shington,  of  X'ir^'inia,  had  been  appointed  com- 
mander-in-chief up»)n  motion  of  Maryland,  seconded  by  John  Adams  of 
Mas.sachii>etts.  The  committee  to  draft  the  Declaration  of  Independence  had 
as  its  chairman  Thomas  Jefferson  of  the  colony,  by  virtue  of  that  Declara- 
tion to  be  the  Slate,  of  Virginia,  in  lieu  of  Richard  Henry  Lee,  absent  on 
account  of  dlnes.s  in  his  family,  who  might  otherwise  have  presided  over  the 
comnnttee  and  drafted  its  report. 

The  committee,  consisting  of  Thomas  Jefferson  of  Virginia,  John  Adams 

'  /  r;i;;u:;,i  ,./  (/,»    i  ifnUtuHiat  CuHyrtjs,  Vol.  lii,  p.  319. 
=  /..(i  ,  Vol.  iv,  p.  342. 
^Ihd..  Vol.  V.  p.  425. 


rhr 

.N.ilirin 
u(  li.lr 


I!.,- 
I  in»l 
Slcp 


30 


THE   UN'ITED  STATES:    A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


The  r)«t- 

laraticn 
SiRned 
anii   Vto- 
claifTic<l 


of  Massachusetts,  Benjamin  Franklin  o^  Pennsylvania,  Roger  Sherman  of 
Connecticut,  and  Robei.  R.  Livingston  of  New  York,  was  elected  by  ballot 
"  to  prepare  a  declaration  to  the  effect  of  the  said  first  resolution."  On  the 
28th  of  June  the  committee  brought  in  a  draft  of  a  Declaration  of  Independ- 
ence, written  by  Thomas  Jefferson  with  slight  emendations  on  the  part  of  Dr. 
Franklin  and  John  Adams,  still  to  \)c  seen  in  their  handwriting  on  Mr.  Jeffer- 
son's manuscript.  On  July  2nd.  Richard  Henry  Lee's  resolution  was  adopted. 
On  the  4th  day  of  July  the  Declaration  of  Independence,  as  reported  by  the 
committee,  was  agreed  to  with  sundry  amendments  '  both  of  form  and  sub- 
stance, and  signed  by  John  Hancock  as  President  of  the  Congress,  by  Chafles 
Thompson  as  Secretary,  and  by  its  members  on  August  2nd.  The  Declara- 
tion was  published  immediately,  and  in  fact  as  well  as  in  law  the  independence 
of  the  United  States  dates  from  the  4th  day  of  July,  1776.  On  this  same 
eventful  day  the  Congress  directed  that  copies  be  sent  "  tn  the  several  assem- 
blies, conventions,  and  committees,  or  councils  of  safety,  and  to  the  several 
commanding  officers  of  the  continental  troops;  that  it  be  proclaimed  in  each 
of  the  United  States,  and  at  the  head  of  the  army."  " . 

The  document  consists  of  what  may  be  called  a  preamljle,  stating  the  right 
of  peoples  to  set  up  for  themselves  and  to  change  their  forms  of  government 
at  their  sovereign  pleasure;  of  an  imposing  list  of  grievances  suffered  at  the 
hands  of  George  111,  then  King  of  (ireat  Britain;  and  of  a  Declaration  of 
Independence,  based  upon  the  right  in  behalf  of  the  colonies  asserted  in  the 
preamble  and  justified  by  the  enumeration  of  grievances  set  furlh  in  the  body 
of  the  instrument,  "  to  assume,  among  the  I'uwers  of  the  earth,  the  separate 
and  equal  station  to  which  the  Laws  of  Nature  and  of  Nature's  God  entitle 
them  ;  "  and  "  for  the  support  of  this  Declaration,  with  a  firm  reliance  upon  the 
protection  of  divine  I'rm  idence,"  the  delegates  of  the  erstwhile  colonies,  speak- 


>  For  an  account  of  the  ilraftitiR  of  the  nt-cl.Tratioii  and  the  aniemlnients  siigsested  by 
Joim  A(lain~  an<l  l!fni:iniin  I'raiiklin,  see  John  11.  Hazclton,  The  Ocilaralion  of  Indefend- 
cn.;-  —  lls  History.  VMk  Ch.ipttr  VI. 

Ill  a  Kilir  to  Mr.  .M,ili>oM,  >!:it(.l  .\iii:nst  30.  IW,!,  forty-seven  years  afti-r  "the  transac- 
tions of  IiKiriiendcine,"  Mr.  Jel'''^■r^on  tiKiilt-  tile  f"llowinK  statement: 

thf  lonini'ttic  ol  5.  nut,  no  snch  tiling  as  a  siiliconiniittei-  was  proposed,  hut  they  nnani- 
moiisly  pressed  on  niy-clt  alone  to  iiiiilertake  the  drauKJit.  I  consented;  1  drew  it;  hut  be- 
fore 1  reported  it  to  tlie  committee.  I  conimiinicated  it  si'piir,it,-ly  to  I)'.  I'ranklin  anil  iTir. 
.Adams  rei|iirstinK  their  correitions  hecaiise  they  were  the  two  niemliers  of  whose  judK- 
nients  and  ameiidiiHiUs  1  wi-hed  ni.pst  to  h.i\e  the  henci'it  hcfori-  presenting  it  to  the  Com- 
nnllee.  .  .  .  tluir  aitcrati' ii-  were  two  or  tliree  only,  and  merely  verhal.  .  .  .  Pickerin.i<'s 
obsiTvations.  and  fnr.  .\<ianis's  in  addition,  'that  it  contained  no  new  ideas,  that  it  is  a  cm- 
mon  place  coinpil.ition.  it's  seiitinients  hacknied  in  Congress  for  two  \ears  before,  and  it's 
e^-cnce  cont, lined  in  ()tis'>  painpMrt.'  may  all  be  true,  of  that  I  am  not  to  be  t!ie  j'idue. 
Ki  Iv'.  II.  l.c  cl'ar'.!eil  it  a-  i.ii;i<-d  iroin  1...  kt.'\  treatise  ,,ii  i.'o\  eminent.  (  Itis's  pamphlet 
I   never  -^aw,  \-  whvt!;er  1   had  i.Mthired  my  irlcas  from  rea  Imu  or  redeotion  I  <lo  not  knr'-.v. 

I  know  oidv  tiint  I  firni'l  1"  neitluT  1 k  ■  r  I'anii'hlet  wliile  writins:  it.     1  did  not  consiiler 

it  as  any  part  of  m\  ctiaree  to  iii\"i;t  ii' \v  ideas  alto.jcther  S:  to  otfer  no  sentiment  which 
had  ever  betii  espressed  before.  _lla?eItoii,  pp.  144-145.  Sec  also  Ford,  The  ll'ritinijs  of 
7"''.'''"i.i(  .'rrtiTi  ■»■.  Vol.   \,  pp.  26"-6. 

- /'i||illil/.(   of   Iho  (    'lUllltHtol   C'>llortSS,   \'ol.   v.   '1    ,sKi. 


INDEPENDENCE  DECLARED 


31 


ing  now  and  the  first  time  for  the  States,  mutually  pledged  their  lives,  their 
fortunes,  and  their  sacred  honor. 

For  present  purposes  it  is  only  necessary  to  state  and  to  analyze  the  political 
philosophy  contained  in  the  preamble  and  the  conclusion  of  this  remarkable 
document,  which,  as  the  historian  Buckle  has,  as  we  believe,  aptly  said,  of  the 
Declaration  as  a  whole,  "  ought  to  be  hung  up  in  the  nursery  of  every  king,  and 
blazoned  on  the  porch  of  every  royal  palace."  ' 

In  the  preamble  to  this  most  famous  of  American  state  papers,  the  members 
of  the  Second  Continental  Congress  set  forth  not  only  the  reasons  which 
impelled  them  to  separate  but  the  rights  which  they  believed  to  be  inherent 
and  the  principles  which  should  lie  at  the  basis  of  every  form  of  government, 
expressed  in  language  as  classic  as  the  thought  was  impressive ; 

When,  in  the  Course  of  human  events,  it  becomes  necessary  for  one  peo- 
ple to  dissolve  the  political  bands  which  have  connected  them  witli  another, 
and  to  assume,  among  the  Powers  of  the  earth,  the  separate  and  equal  station 
to  which  the  Laws  of  Nature  and  of  Nature's  God  entitle  them,  a  decent  re- 
spect to  the  opinions  of  mankind  requires  that  they  should  declare  the  causes 
which  impel  them  to  the  separation." 

Fortunately,  this  language  is  so  clear  and  so  broad  that  it  is  understood 
today  as  it  was  then,  and  its  application  to  all  states  and  conditions  of  men 
is  seen  by  us  of  the  present  day,  quite  as  it  was  felt  by  them  to  be  applicable  to 
the  thirteen  United  Colonies.  Certain  observations  of  a  very  general  nature 
may,  however,  be  apposite. 

The  dissolution  of  the  political  bands  connecting  a  people  with  another  is 
looked  upon  as  necessary  in  the  course  of  human  as  distinct  from  divine  events. 
The  consequence  of  this  dissolution  is  not  the  gathering  of  that  people  into  a 
province  or  subordinate  political  community,  but  the  creation  of  a  power, 
separate  and  distinct  from  all  other  powers  and  possessed  of  an  equal  rank  and 
station  to  which,  according  to  the  statesmen  of  that  day,  "  the  laws  of  Nature 
and  of  Nature's  God  entitle  them."  The  matter  is  not  lalwred  or  argued,  it 
is  merely  stated,  with  its  consequences.  It  was  apparently  felt  that,  although 
such  action  was  in  conformity  with  the  laws  of  Nature  and  of  Nature's  God, 
it  might  not  appear  to  be  such  to  the  princes  and  peoples  of  the  old  world. 
Therefore,  "  a  decent  respect  to  the  opinions  of  mankind  "  suggested  and  re- 
quired that  they  should  declare  the  causes  which  impelled  them  to  separate. 
.Accordingly,  fitting  practice  to  precept,  they  thereupon  stated  the  causes,  bas- 
ing them  in  the  first  instance  upon  certain  principles,  which  they  thus  enumer- 
ated: 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created  equal, 
that  they  are  endowed  by  their  Creator  with  certain  unalienable  Rights,  that 
among  these,  are  Life,  Liberty,  and  the  pursuit  of  Happiness.     That,  to  se- 

»  H.  T.  Buckle,  History  of  Cnilisation  in  England,  Am.  cd.,  1857,  Vol.  i.  p.  846. 
^J^urxals,  Vol.  v,  p.  S50. 


lu 

Political 

FhiloMphr 


i. 


f 


ft." 


32  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  OROANIZATION 

cure  these  rights,  Governments  are  instituted  among  Men,  deriving  their  just 
Powers  from  the  consent  of  the  governed.  That,  whenever  any  form  of 
Government  becomes  destructive  to  these  ends,  it  is  the  Right  of  the  People 
to  aher  or  to  abolish  it,  and  to  institute  new  Government,  laying  its  founda- 
tion on  such  Principles,  and  organizing  its  Powers  in  such  form,  as  to  them 
shall  seem  most  likely  to  eflcct  their  Safety  and  Happiness.' 

By  way  of  comment,  it  may  be  premised  that  the  members  of  the  Congress 
abstained  from  argument  in  laying  down  these  truths,  which,  when  stated, 
they  proceed  to  apply  in  the  form  of  conclusions  rather  than  as  premises  to  be 
proved.  It  is  to  be  observ-ed  that,  although  convinced  in  their  own  minds,  they 
are  not  dogmatic,  inasmuch  as  they  do  not  say,  except  by  way  of  implication, 
that  the  truths  they  lay  down  are  self-evident,  but  that  they  themselves 
hold  them  to  be  self-evident.  In  any  event,  they  were  to  be  self-evident  in 
the  New  World,  and  the  States  of  the  New  World,  to  be  combined  later  into  a 
more  perfect  I'nion,  were  to  be  based  upon  these  truths. 

It  is  further  to  be  observed  that  Jhese  rights  with  which  men  arc  en- 
dowed by  their  Creator  were,  in  their" conception,  inalienable,  and  that  life, 
libertv  and  the  pursuit  of  happiness  were  so  important  as  to  lie  singled  out  as 
among  these,  not  that  life,  liberty,  and  the  pursuit  of  happiness  were  the  only 
inalienable  riphts  with  which  men  were  endowed  by  their  Creator.  They 
were,  however,  the  fundamental  as  well  as  inalienable  rights,  because  to  secure 
them  g(nernments  were  instituted  among  and  by  men  which  thus  received 
whatever  powers  they  were  to  exercise  from  the  consent  of  the  governed;  the 
meaning  of  which  seems  to  be  as  plain  as  words  can  make  it,  that  States  or 
nations  do  not  confer  powers  upon  the  governed,  but  that  the  people  com- 
posing the  State  or  nation  confer  upon  the  Government  of  that  State  or  nation 
all  the  powers  which  it  possesses,  and  therefore  may  lav.fuUy  exercise. 

In  the  next  clause,  taking  note  of  history,  it  is  declared  that  if.  instead  of 
securing  to  men  the  inalienable  rights  to  life.  lil)erty.  and  the  pursuit  of 
hapi)iness  for  which  governments  are  instituted,  they  have  proved  to  !«  "  de- 
structive of  these  ends,"  the  petple  have  the  right  to  alter  or  to  alKilish  them, 
and  by  implication  a  duty  is  raised  to  institute  a  new  government  which  shall 
be  based  upon  <ucb  principles,  and  its  powers  organised  in  such  form  as  shall 
seem  to  the  people  composing  the  State  or  nation  most  likely  "  to  effect  their 
Safety  and  Hai)piness." 

There  is  assuredly  here  no  divine  right  to  govern  wrong.  The  State  is 
composed  of  men  and  women  grouped  together  and  it  only  exists  for  the 
convenience  and  security  of  the  people  residing  within  the  l)oundaries  thereof. 
The  Government  of  the  State  is  for  the  benefit  of  the  people,  not  the  people 
for  the  benefit  of  the  governors;  and  the  form  of  government  failing  to  effect 
the  purpose  for  which  the  State  exists,  and  for  which  the  form  oj  government 

I  J.'urnaU  rif  Ike  CmilincKla!  Conarfss.  Vol.  v.  p.  510. 


INDEPENDENCE  DECLARED 


33 


has  been  framed  is  to  be  brushed  ruthlessly  aside  if  it  fail,  and  to  be  sup- 
planted by  one  having  a  better  chance  of  pleasing  the  individuals  taken  to- 
gether, in  whom  the  sovereignty,  elsewhere  attributed  to  the  State  or  nation, 
resides. 

Such  was  the  American  conception  then,  such  is  the  American  conception 
today,  of  the  origin  of  their  government  and  the  purpose  of  government  in 
general.  Because  of  the  principles  laid  down  in  the  preamble,  and  the  griev- 
ances specifically  stated  in  the  document,  the  Declaration  thus  draws  in  meas- 
ured and  unanswerable  terms  the  consetjuences  of  one  and  the  other : 

We,  therefore,  the  Representatives  of  the  United  States  of  America,  in 
General  Congress  assembled,  appealing  to  the  Supreme  Judge  of  the  World 
for  the  rectitude  of  our  intentions,  do,  in  the  Name,  and  by  Authority  of  the 
good  I'eople  of  these  Colonies,  solemnly  publish  and  declare.  That  these 
United  Colonies  are,  and  of  Right,  ought  to  be  Free  and  Indepet  dent  States; 
that  they  are  Absolved  from  all  Allegiance  to  the  British  Crown,  and  that  all 
political  connetion  between  them  and  the  State  of  Great  Britain,  is  aiul  oii(,'ht 
to  be  totally  dissolved ;  and  that,  as  Free  and  Independent  States,  they  have 
full  Power  to  levy  War,  conclude  Peace,  -ontract  Alliances,  establish  Com- 
merce, and  to  do  all  other  Acts  and  Things  which  Independent  States  may 
of  right  do.  And  for  the  support  of  this  Declaration,  with  a  firm  reliance 
on  ihc  Protection  of  Divine  Providence,  we  mutually  pledge  to  each  other  our 
Lives,  our  Fortunes  and  our  sacred  honour.* 

Because  of  these  premises  and  conclusions,  the  people  of  the  Colonies,  by  their 
representatives  in  Congress  assembled,  declared  the  Colonies  to  be  free  and 
independent  States,  absolving  them  from  allegiance  to  the  British  Crown  and 
dissolving  the  political  connection  between  them  and  the  State  of  Great  Brit- 
ain, anporently  applying  the  word  "  State  "  to  Great  Britain  and  erstwhile 
colon;,  with  a  like  significance.  And  the  free  and  independent  States,  no 
longer  spoken  of  as  unitetl  or  in  union,  are  declared  to  have  "  full  power  to 
levy  War,  conci  ";  Peace,  contract  .Mliances,  establish  Commerce,  and  to  do 
all  other  Acts  a       Things  which  Independent  States  may  of  right  do." 

1  he  immediate  and  the  proximate  results  of  thi>  I^eclaration  on  the  n.ir*    1'""""'^ 
ot  the  Congress,  drafted  in  faultless  language  by  Jefferson,  are  thus  stated  hv   j'^'|;f„ 
James  Monroe,  a  younger  contemporarj ,  destined  to  be  an  illustrious  suc- 
cessor of  Jefferson  in  the  Presidency: 

The  first  is  that  in  wresting  the  power,  or  what  is  called  the  sovereignty, 
from  the  Crown  it  passed  directly  to  the  peoi)le.  The  second,  tliat  it  |)asvc(i 
directly  to  the  people  of  each  Colony  and  not  to  the  people  of  all  the  Colonics 
in  the  aggregate ;  to  thirtcn  distinct  comtuunities  and  not  to  one.  To  these 
two  facts,  each  contributing  its  ecjual  pioportion.  I  am  inclined  to  think  that 
we  are  in  an  eminent  degree  indel'ed  for  the  success  of  our  Revolution.- 

'  Journals.  Vol.  v,  p.  514. 

'Views  of  tlie  Presidents  of  the  United  States  on  the  Subject  of  Internal  Improvements 
—  Manislans  Mnrray  Hamilton,    I  lu-  U  rtiiiij;s  ">  !a\<.\cs   Um.'.'.i:'    ti.f!)    \V.i    ^    „'    114      c^e 

^,l»"J,?'",".iiL.'^',.'''y'','°"'.^n'""'''''"''"'  °*  the  Messages  and  Payers  of  Ihe'rn-sideuls. 
t7°9-l°97  (1OV6),  vol.  2,  p.  149. 


■'.i 


%)     - 

i 


34 


THE  UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 


A  New 

Bodr 
Folitk 


Our  First  »nd 
Only  Ally 


And  yet,  although  the  colonies  were  declared  by  this  instrument  to  be  free 
and  independent  States,  or  thirteen  distinct  communities,  in  Monroe's  gloss, 
they  nevertheless  may  be  considered  by  the  agreement  of  association  or  by 
the  Declaration  of  Independence,  or  by  their  mere  association,  without  the 
agreement  of  1774  or  the  Declaration  of  1776,  to  form  a  body  politic,  as 
they  \  ere  expressly  held  to  be  by  a  signer  of  the  Declaration  of  Independence, 
in  the  case  of  Respublka  v.  Sweers  (1  Dallas,  41),  decided  in  the  Supreme 
Court  of  Pennsylvania  in  1779.  approximately  two  years  before  the  Articles 
of  Confederation,  making  of  them  a  perpetual  Union,  had  gone  into  effect. 

The  facts  of  this  case  are  very  interesting,  in  that  one  Cornelius  Sweers, 
a  deputy  Commissary-General  of  Military  Stores  in  the  armies  of  the  United 
States  of  America,  was  indicted  in  a  Pennsylvania  court  held  in  Philadelphia, 
—  because  the  United  States  did  not  then  possess  courts  of  their  own, —  in 
November,  1778,  for  forgery  upon  two  bills  with  intent  to  defraud  the  United 
States.  On  the  14th  of  April,  1779,  he  was  convicted  upon  both  indictments, 
and  five  days  later  the  exceptions  taken  by  his  counsel  were  overruled  and 
sentence  pronounced  by  the  court.  Mr.  Chief  Justice  McKean  said,  in  over- 
ruling the  exceptions  to  the  form  and  substance  of  these  indictments,  and  in 
sentencing  the  defendant,  convicted  upon  Iwth  of  them : 

The  first  exception  was,  "  that,  at  the  time  of  the  offence  charged,  the 
United  States  were  not  a  body  corporate  known  in  law."  But  the  Court  are 
of  a  different  opinion.  From  the  moment  of  their  association,  the  Uni'jd 
States  necessarily  became  a  body  corporate ;  for,  there  was  no  superior  from 
whom  that  character  could  otherwise  be  derived.  In  England,  the  king,  lords, 
and  commons,  are  certainly  a  body  corporate;  and  yet  there  never  was  any 
charter  or  statute,  by  which  they  were  expressly  so  created. 

After  examining  certain  technicalities  of  pleading,  immaterial  to  the  matter 
in  hand,  the  Chief  Justice  thus  continued : 

Upon  the  whole,  we  are  of  opinion,  that  your  conviction  has  been  legal, 
as  well  as  just;  and,  therefore,  it  only  remains  to  pronounce  the  sentence  of 
the  court. 

The  sentence,  alike  important  and  interesting  both  to  the  defendant  and  to 
the  reader,  is  happily  expressed  in  terms  of  the  independence  of  the  United 
States : 

Sentence,  on  the  first  indictment: — A  fine  of  £70  and  imprisonment  un- 
til the  4th  of  July,  the  anniversary  of  American  Indei)cn(icnce. 

Sentence,  on  the  second  indictment: — .\  fine  of  £1020  and  imprisonment 
until  the  next  annual  election  for  Pennsylvania,  and  standing  in  the  pillory 
for  one  hour. 

Reverting  to  the  second  of  the  three  resolutions  introduced  by  Richard 
Henry  Lee  on  June  7,  1776.  "  that  it  is  expedient  forthwith  to  take  lue  most 
effectual  measures  for  forming  foreign  Alliances."  it  is  sufficient  to  say.  in 
this  connection,  that  a  conmiittee  of  five  was  chosen  on  the  12th  in  order  to 


INDEPENDENCE  DECLAKED 


35 


prepare  a  plan  of  treaties  to  be  proposed  to  foreign  powers,  and  that  Ben- 
jamin Franklin,  a  member  of  the  committee  on  the  Declaration  of  Independ- 
ence, was,  by  the  Congress,  sent  as  our  first  minister  to  France,  with  which 
country  he  negotiated,  on  February  6,  1778,  in  conjunction  with  Silas  Dean 
and  Arthur  Lee,  an  offensive  and  defensive  treaty  of  alliance,  by  virtue  of 
which  France  came  to  the  aid  of  the  United  States,  resulting  in  the  acquisi- 
tion of  independence  of  the  Colonies  then,  and  today  in  the  cooperation  of 
the  armies  of  these  United  States  upon  French  soil  to  preserve  inviolate  the 
independence  of  our  first  and  our  only  ally. 

It  could  be  shown,  if  time  and  space  permitted,  that  the  ideas  and  the 
language  of  the  Declaration  of  Independence  came  from  English  philosophers, 
from  Hooker  to  Locke;  that  every  important  phase  of  the  preamble  is  to  be 
found  in  one  form  or  another  in  Locke's  two  discourses  on  Civil  Govern- 
ment; and  that,  indeed,  the  important  phrases  of  the  preamble  can  be  found 
in  Locke's  exact  language. 

But  admitting  that  to  be  so,  it  does  not  detract  from  the  importance  of  the 
document,  because  Locke  spoke  as  an  individual,  justifying  the  Revolution 
iif  1688,  whereas  the  Congress  spoke  as  a  political  body  making  the  Revolu- 
tion of  1776.  And  it  is  believed  that  the  Second  Continental  Congress  is  the 
first  parliament,  legislature,  or  congress  that  ever  adopted  and  proclaimed 
these  doctrines,  and  that  the  United  States  is  the  first  country  which  ever 
put  them  into  effect  in  the  form  in  which  they  were  stated. 

The  doctrines  are  in  truth  the  doctrines  of  English  liljerty.  They  are  not, 
as  has  lx>en  so  often  asserted,  the  doctrines  of  Rousseau.  At  least,  they  were 
not  lx)rrowed  from  him,  and  if  they  are  to  \x  found  in  Rousseau's  Social 
Contract,  they  were  taken  from  Locke,  as  Rousseau  is  known  to  have  dmwn 
heavily  upon  Locke  for  this  little  work. 

The  supposed  influence  of  Rousseau  is  perhaps  best  stated  by  two  careful 
and  thoughtful  investigators  and  writers.  Thus,  Sir  Henry  Sumner  Maine 
says  in  his  Ancient  Law: 

The  American  lawyers  of  the  time,  and  particularly  those  of  \'irginia, 
appear  to  have  possessed  a  stock  of  knowledge  which  differed  chiefly  from 
that  of  their  English  contemporaries  in  including  much  which  could  only 
have  been  derived  from  the  legal  literature  of  continental  Europe.  A  very 
few  glances  at  the  writings  of  Jefferson  will  show  how  strongly  his  mind  was 
aff'ectcd  by  the  semi-juridical,  semi-popular  opinions  which  were  fashionable 
in  France,  and  we  cannot  doubt  that  it  was  sympathy  with  the  peculiar  ideas 
of  the  French  jurists  which  led  him  and  the  other  colonial  lawyers  who  guided 
the  course  of  events  in  America  to  join  the  specially  French  assumption  that 
"  all  men  are  born  equal "  with  the  assumption,  more  familiar  to  Englishmen, 
that  all  men  are  born  free,  in  the  ver^  st  lines  of  their  Declaration  of  In- 
dependence. The  passage  was  one  of  g  it  importance  to  the  history  of  the 
doctrine  before  us.  The  American  lawyers,  in  thus  prominently  and  em- 
phatically affirming  the  fundamental  equality  of  human  beings,  gave  an  im- 
pulse to  pohtical  movements  in  their  own  country,  and  in  a  less  degree  in 


,  :i,! 


f.  .1 


Orisrin  of  the 
DoctrineB 


11 


1  = 


36  THE  UN'ITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 

Great  Britain,  which  is  far  from  having  yet  spent  itself ;  but  beside  this  they 
returned  the  dogma  they  had  adopted  to  its  home  in  France,  endowed  with 
vastly  greater  energy  aiid  enjoying  much  greater  claims  on  general  reception 
and  respect.* 

In  speaking  of  the  influence  of  Pousseau  and  his  followers,  John  Morley 
said,  in  his  life  of  Rousseau,  first  published  in  1873,  that: 

It  was  that  influence  which,  though  it  certainly  did  not  produce,  vet  did 
as  certainly  give  a  deep  and  remarkable  bias,  first  to  the  American  Revolu- 
tion, and  a  dozen  years  afterwards  to  the  French  Revolution.' 

In  The  Fortnightly  Rn-icw  for  1879,  Mr.  Morley,  returning  to  the  subject, 
declared  that : 

Xolxjdy.  however,  who  has  examined  so  mi*ch  as  the  mere  surface  of 
the  question,  would  now  dream  of  denying  that  the  French  theories  of 
society  played  an  important  part  in  the  preparation  of  .American  independ- 
ence.' 

.•\s  a  colonist,  Jeflferson  was,  in  his  earlier  days,  influenced  by  English 
liberal  writers,  for  the  purpose  of  the  colonists  was  to  show  that  as  English- 
men they  were  entitled  to  English  liberty  as  laid  down  in  English  writers  of 
repute.  The  Declaration  of  Independence  naturally  and  necessarily  embodied 
the  views  and  the  conception  of  government  upon  which  the  colonists  had 
made  their  st.ind. 

.\s  a  statesman,  and  especially  after  his  return  from  France,  where  he 
succeeded  Franklin  as  .American  Minister.  JefTcrson  may.  indeed,  have  been 
influenced  by  French  ideas  and  conceptions.'* 

For  the  Iwdv  of  his  countrymen  who  had  not  visited,  much  less  resided  in 
France,  the  French  philosophers  came  with  the  French  troops  to  America, 
and  remained  after  the  French  .\rmy  departed,  having  accomplished  its  pur- 
pose at  Vorktown.  It  is  believed  that  in  the  matter  of  philosophy  and  demo- 
cratic doctrine,  they  returned  with  more  than  they  brought. 

1  "^ir  Henrv  Sumiur  Maine.  Amicnt  Uu\  10th  Kdition,  1884.  pp.  91-92,  In  a  note  to  this 
pas^aKC  piil.ii-lii.l  in  liis  edition  of  .tmicnl  I.aii\  p.  409,  Sir  Frederick  Pollock  thus  states 
what  is  l.vliewil  to  l„  tlie  correct  and  the  prevailing  views  on  this  suliject:  ,  .         • 

■This  is  not  the  place  to  speak  at  large  of  Roiissean's  inllnence  on  the  fonmlers  of  .Anieri- 
can  independence  and  the  leaders  of  the  French  Revolution  hot  the  carefnl  re>earcli  ot 
American  scholars  has  lately  shown  that  the  Principles  of  1/89  owed  more  to  the  American 
Declarati..n  ol  Irdepemlence  and  the  earlier  Pills  of  Rifthts  of  s.neral  States  thari  we  used  to 
suniHise  afd  less  to  Ronssean,  and  that  the  lanRnage  of  the  American  constitntional  instru- 
mei'ts  proceeded  from  the  school  not  of  Rousseau  but  of  Locke.  (bcherger,  The  Evolution 
of  .U."/.-Mi   'i',--(v.  New  York.  l'Xt4l. 

Mohn  Morlev,  R»i.«,<ii<.  1S73,  Vol.  1,  p    188.  .   , .,     „  rs      u       lo-n        cqj 

3  lohn  N'orlev     )  II'..r,f  IkiIIi  Snwc  Critics,  The  Fortnvihtly  Re:ifu\  October,  l«/9.  p.  SK-l. 

*U  is  trre  ihkt  JetTer-on  aft>r«ar.|s  -drank  a  deep  .Iraukdit  frntn  the  intoxtcatinc  cup 
nf  the  French  R.\oU.tu.n,-  h  -t  ue  do  not  think  that  in  1776  he  had  felt  the  French  political 
influence.  He  «as.  «e  know,  a  stndem  of  I.'x•W,^  and  Locke  asserted  the  natural  equality 
of  man  as  str.mulv  as  his  natural  liberty.  (W  T.  Prantly,  Of  the  Influence  of  Eurofean 
S!<eculatu„i  in  the  l'"r„u,li<,i  of  the  EeJeral  Constitution.  iSSo,  Soutliern  Law  Reinez.; 
New  series.  I  ol.  Vi,  P-  Ji4) 


Ill 

A  CONFEDERATION  OF  SOVEREIGN  STATES 

As  preliminary  to  the  very  able  discussions  of  the  constitiitron,  which  we  have  heard 
from  the  bar.  and  as  having  snme  inHn'.'iice  on  its  constnicti'in,  reference  has  been  made 
to  the  political  situation  of  these  states,  anterior  to  its  formation.  It  has  been  said,  that 
they  were  jtivereign,  were  cimpletely  independent,  and  were  comiected  with  each  other 
only  by  a  league.  This  is  tr  •.  (Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  9  IVheaton, 
1,  iSj,  decided  in  tSJ-f.) 


; :;'  Hi 

''f;I 


ii 


In  June  1776,  the  Convention  of  Virginia  formally  declared,  that  Virginia  was  a  free, 
sovereign,  and  independent  state;  and  on  the  4th  of  July.  1776.  followinR,  the  United  States, 
in  Congress  assembled,  declared  the  Thirteen  United  Colonies  free  and  inde|>endem  stales; 
and  that  as  such,  they  had  full  power  to  levy  war,  conclude  peace,  &c.  I  consider  this  as 
a  declaration,  not  that  the  L'nited  Colonies  jointly,  in  .1  collectiie  capacity,  were  independent 
states.  &c.  but  that  each  of  them  was  a  sovereign  and  independent  state,  thai  is,  that  each 
of  them  had  a  right  to  govern  itself  by  its  own  authority,  and  its  own  laws,  without  any 
contmul  from  any  other  power  upon  earth. 

Before  these  solemn  arts  of  separation  from  the  Crown  of  Creat  Britain,  the  war  between 
Great  Britain  ami  the  L'nited  Colonies,  jointly,  and  scfarately.  was  a  ei--il  war;  but 
instantly,  on  that  great  and  over  memorable  event,  the  war  ch.injjed  its  nature,  and  became 
a  I'fBLic  war  between  independent  go-crnmcnts;  and  immeiliately  thereupon  all  the 
rights  of  />i<('/iV  war  (and  all  the  other  rights  of  an  independent  nation)  attached  to  ttie 
government  of  Virginia:  and  all  the  former  political  connexion  betwpen  Great  Britain  and 
Virginia,  and  ;ilso  between  their  respective  subjects,  were  totallv  dis'^olved;  and  not  only 
the  Itxo  nations,  but  all  the  subjects  of  each,  were  in  a  state  of  war;  pri-cisely  as  in  the 
present  war  between  Great  Britain  and  France.  Vatt.  lib.  j.  e.  iH.  s.  ^f)!,  ."95.  lib.  3.  c.  5, 
s.  ;n,  7-',  and  73. 

From  the  4ih  of  July,  1776,  the  American  States  were  de  facto,  as  well  as  de  jure,  in  the 
possession  and_actual  exercise  of  all  the  ri(ihls  of  independent  Rovernments  On  the  6lh 
of  February,  1778,  the  King  of  I'rance  entereil  into  a  t^e.^ty  of  alliance  with  the  United 
Stales:  and  on  the  8th  of  Oct.  178i,  a  treatv  of  Amrtv  ;.nd  Commerre  was  concluded 
between  the  United  Stales  and  the  States  General  of  the  United  Provinces.  I  liave 
ever  considered  it  as  the  established  doctrine  of  the  l'nited  Stales,  that  their  independence 
originated  from,  and  commenced  with,  the  declaration  of  Consress.  on  the  4th  of  July, 
1776;  and  that  no  other  period  can  he  fixed  on  for  its  commencement;  and  that  all  laws 
made  by  the  legislatures  of  the  several  states,  after  the  declaration  of  independence,  were 
the  laws  of  sovereign  and  independent  governments.  (.Mr.  Justice  Chase  in  Ware  v.  J/ylton, 
3  Dallas  199,  pp.  J.'4-jJS,  decided  in  1796.) 


The  court  entert.Tins  no  dotibt  that  after  the  4th  of  October  1776.  he  became  a  member 
of  the  new  society,  entitled  to  the  protection  of  its  government,  and  bound  to  that  govern- 
ment by  the  ties  of  allegiance. 

This  opinion  is  predicated  upon  a  principle  whiih  is  believed  to  tie  undeniable,  that  t'lc 
several  states  which  composed  this  I'nion.  si  f.ir  at  least  as  reuarded  their  municipal 
regulations,  became  entitle<l.  from  the  time  when  they  declared  themselves  independent,  to 
all  the  rights  and  powers  of  sovereign  stales,  and  that  they  did  not  derive  them  from 
concessions  made  by  the  British  king.  The  treaty  of  peace  contains  a  recognition  of  their 
independence,  not  a  grant  of  it.  I'rom  hence,  it  results,  that  the  laws  of  the  several  state 
governments  were  the  laws  of  sovereign  states,  and  as  such  were  obligatory  upon  the 
people  of  such  state,  from  the  time  iliey  were  enacted.  (Mr.  Justice  Gushing  in  Mclliaine 
v.Coxe,  4  Craneh,  M9,  Jti,  decided  in  iSoS.) 


l\ 


f-i 


I  ' 


This  Court  has  decided.  "  That  there  was  no  territory  within  the  United  States,  that  was 
claimed  in  any  other  right  than  that  of  some  one  of  the  confederated  states;  therefore, 
there  could  br  no  arqtsisition  of  territory  :Tisde  by  the  I'nitr.l  State=.  di>tin't  tr"m,  or 
independent  of,  some  one  of  the  stales ;  the  soil  and  sovereignty  were  as  much  theirs  at  the 

37 


fi 


I 


38 


THE  UNITED  SI  AXES:  A  8TTJDY  IK  IMTEHNATIOHAL  OBGANWATlOlf 


\$ 


dtcUmtioij  of  independence,  ai  at  thit  hour."  (18^)  "Tliui  .tood  the  riRht.  of  the  par- 
ties at  the  commencement  of  the  revolution;  .  .  .''  (Mr.  Jutlicf  Badtnn  A  Gtntral  Vxtw  of 
thf  Origin  and  Nalnrt  of  Ik*  ContUtution  and  GovtmmenI  of  the  United  i>  tales.  1S3T,  p.  86.) 

The  Peofle  of  this  Slate,  being  by  the  Providence  of  God.  free  and  independent,  hate 
the  sole  and  exclusive  Right  of  governing  themselves  as  a  free,  sovereign,  and  independent 
Slate-  and  having  from  their  Ancestors  derived  a  free  and  excellent  Consttlulton  of  Gov- 
ernment whereby  the  Legislature  depends  on  Ihc  free  and  annual  Election  of  Ike  reofU, 
they  have  the  best  Security  for  the  I'resenalion  of  their  cii-il  and  religious  Rights  and 
Liberties.  .Ind  forasmuch  as  the  free  Fruition  of  such  Liberties  and  rrivilcges  as  Hu- 
manitx.  Cn^lily  and  Christianity  call  for,  as  is  due  to  erery  Man  in  his  Place  and  I  rofor- 
lion.  uilhoul  Impeachment  and  Infringement,  hath  ever  been,  and  Kill  be  the  Tranauilily 
and  Slahility  of  Churches  and  Commonwealths:  and  the  Denuil  thereof,  the  Disturbance, 
if  not  the  Ruin  of  both.  ,  ^         -,        j  u  t 

Paragraph  1.  Be  it  enacted  and  declared  by  the  Governor,  and  Council,  and  House  of 
Representatives,  in  C  reral  Court  assembled,  that  the  ancient  Form  of  Uvil  Government, 
contained  in  the  Cli  .r  from  Charles  the  Second.  Kins  of  England.  mA  adopted  by  the 
People  of  th!-  «»atc.  -h.ill  be  and  remain  the  Civil  Constitntion  of  this  State,  under  the  sole 
authority  of  ti.<  People  thereof,  independent  of  any  Kinff  or  Prince  whatever.  And  that  this 
Republic  is,  and  shall  forever  he  and  remain,  a  free,  sovereign  and  in<lependent  State,  Dy 
the  Name  of  the  STATE  or  CONNECTICUT.  (Constitution  of  Connecticut.  177^  Ben. 
Pcrley  Poore,  The  Federal  and  Stale  Constitutions.  Colonial  Charters,  and  other  Organic 
Imus  of  the  United  States,  1S77,  Part  I,  pp.  i57-^SS.) 

The  people  inhahitinc  flie  territory  formerly  called  the  province  of  Massachusetts  Bay 
do  hereby  soU-mnlv  and  mutually  agree  with  each  other  to  form  themselves  mto  a  free, 
sovereign  and  indepen<Ient  Ixidy-politic  or  State,  by  the  name  of  the  commonwealth  of 
Massachusetts.  (Constitution  of  Massachusetts.  ijSn.  Part  The  •^'''■""^  ."f  ,7:""'  ?/ 
Covernmcnl  Ben:  Perley  Poore.  The  Federal  and  Slate  Constilulions.  Colonul  Charters, 
and  other  Organic  Laws  of  the  United  Stales,  1S77.  Pari  I,  p.  960.) 

This  alliance,  league,  or  confederacy  of  the  states  with  each  other,  can  leave  no  doubt, 
that  up  to  the  time  of  the  t'lnal  ratification  in  March,  1781.  each  state  was  »<^P>"«'y 
sovereign  in  its  own  inherent  right:  and  so  remained  .ns  to  all  p.iwer  not  expressly  ueic- 
gated.  as  was  declared  in  the  second  article  [of  Confederation).  The  third  article  is  aiso 
conclusive,  that  the  object  of  the  alliance  was  to  m-iintain  and  perpetuate  their  separaic 
sovereignty.  This  is  the  more  manifest,  when  these  articles  are  taken  m  connection  witn 
the  alliance  of  the  states  with  France.  ...  .  .  .  .  ^  .      «„..,, ii„ 

"The  essential  and  direct  end  of  the  present  defensive  alliance,  is  to  maintain  etf ectiia  13^ 
the  libertv.  sovereignty,  and  independence,  absolute  and  unlimittd  of  the  said  un'"" 
States,  as'well  in  matters  of  gorenimenl.  as  of  commerce."  In  the  llth  article,  the  parties 
make  a  mutual  guaranty :  in  that  of  France,  "His  m.-«t  Christian  majesty  (?"»""«'"; 
on  his  part,  to  the  I'nited  States,  their  liberty,  sovereignty,  and  independence,  absolule 
and  imlimitcd.  as  well  in  matters  of  government  as  commerce:  »\^o  .feir  posseestons, 
and  the  additions  or  conquests  that  //ic>>  confcdernlion  may  make  during  the  war,     «c. 

^  ThiT"  guaranty  was  fulfilled  by  the  treaty  of  peace,  in  which  "His  J»'-'"""'<:  "'^'K'))' 
acknowledges  the  said  Vnite.l  States,  to  wit :  New  Hampshire  &c,.  «°  .»•«  ^ ^Z  »°^^";'«" 
and  independent  states."  I  Laws.  1%.  This  recognition  Tf '■-"•"«  ^^^  <';''"^,h'/''"^' 
or  unanimous  declarations  hy  the  states,  as  this  Court  have  held  '«.•,"»'.'*'*.  ""15 
effect,  as  if  the  states  had  then  assumed  the  same  position,  hy  «''f  I'ff^'""^''.''^""'^  °} 
the  king:  the  treaty  no,  In-ing  a  grant,  bu,  a  recognition,  and  'f 'X'"f  u^'rewZ  t 
their  pre-existing  condition;   and  all  acts  which  had  dechred  and  defined  it  previous  to 

the  trcatv,  related  back  to  1776.  ...  

Suchtieing  the  relations  ,f  the  several  states,  m  their  federal  and  foreign  oncerns, 
it  follows  that  as  to  their  irt<  .nal  concerns,  they  were  in  the  same  attitude  of  ahsohite 
ami  unlimite.l  sovereignty,  f*fore  the  articles  of  confederation,  as  they  were  aft"*"'^'. 
except  so  far  as  they  abridge.l  it.  Each  was  a  party  to  the  treaty  of  alliance  and  peace, 
and  each  was  hound  hv  the  guarantee  to  France,  after  the  confederation  was  abolished, 
and  the  constitution  was  established,  as  firmly  as  before:  the  states  who  delayed  their 
ratification  remamed  so  hound,  for  they  could  hy  no  act  of  their  own.  impair  the  rights 
of  France-  and  they  were  equally  entitled  to  the  effects  of  the  treaty  of  peace,  whether 
thev  became  constituent  parts  of  the  I'nion,  bv  ratifying  the  constitution,  or  remained  foreign 
states  bv  not  adopting  It.  Their  state  constitutions  and  governments,  remained  unimpaired 
"by  any  surrender  ..f  llKir  rights:  i.i  that  of  canM:-,i!rPce.  tb.-._r  s-yrrcgnty  was  prrfert, 
SO  long  as  they  conunued  free  from  any  federal  shackles;  so  the  states  acted,  and  so  the 


A   CONFEDERATION   OF. SOVEREIGN   STATES 


39 


people  of  each  drclarcd.  in  alt  their  conventioin,  from  1776  to  1780.  (Mr.  Justice  Baldwin.  A 
General  i'ieu'  of  the  Origin  and  Nature  of  the  Conililulion  and  Government  of  the  United 
States,  iSsr,  Pf.  79-^'-) 

The  problem  before  the  Convention  wai  to  form  a  confederation^  of  States  which  should 
possess  the  requisite  vigor  without  being  a  consolidation  nf  the  !>tatc«  They  knew  that 
the  latter  plan  would  be  rejected  by  their  constituents.  .ilihouRh  .Mexandcr  Hamilt'm  and 
others  thought  that  there  could  be  no  other  pcrni.incnt  solutior  of  ilie  problem.  The  Con- 
vention sought  for  light  and  guidance  in  the  example  nf  other  ronfeilerated  governincntj. 
They  looked  abroad  to  sec  how  other  countries  had  extricated  themselves  from  similar 
.  _  difficulties.    They   examined   the   history  nf  all    federation^.     Americans   at   that   time   had 

!m  no  need  to  refer  to  any  experience  but  their  own.  if  they  would  learn  the  peculiar  duuger 

of  a  confederation.  They  had  too  nflen  seen  the  Continental  Congress  in  the  attitude 
of  a  helpless  suppliant  t>cfnre  Stales  that  made  a  jest  of  ils  requisitions,  to  suppose  that 
any  national  government  which  could  not  raise  a  revenue  of  its  own  w<iuld  Iw  adequate 
to  the  exigencies  of  the  I'nioii.  We  are  therefore  prineipally  iudelited  to  the  distresses 
of  the  Confederation  for  the  greatest  political  invention  of  the  Constitution.  .Ml  previous 
confederacies  of  which  history  contains  any  record  had  acted  on  the  component  p*.a«e». 
and  not  on  individuals.  The  Constitution,  by  its  provision  for  operating  upon  the  individual 
citizen,  affords  a  far  better  guarantee  of  permanence  than  the  hegemony  of  any  powerful 
member  of  the  Confederation  coul.l  do.  The  Constitution  thus  gave  a  new  maxim  of 
unquestionable  value  to  the  science  of  politics.  The  Swiss  Lnion  of  1R48  imitated  it  m 
this  regard,  and  thus  finally  healed  the  dissensions  between  the  cantons.  (H  .  T.  liranlly. 
Of  the  Influence  of  Eumfcan  Sfaulalicn  in  the  F'<riihUion  of  the  Federal  C  onstilutton, 
iSSo.  in  Southern  Law  Refuvj,  New  Series.  Vol.  VI.  pp.  36l-36^.) 


CHAPTER  in 


A   CONFEDERATION    OF   SOVEREIGN    STATES 


Mr.  Diekioion'a 
Plui 


A  I'nitcd 

SUtcs  Congrf  M 


Under  the  third  resolution  proposed  by  Richard  Henry  Lee  on  June  7, 
1776.  that  "a  plan  of  confedtration  lie  prepared  and  transmitted  to  the  re- 
spective Colonics  for  their  consideration  and  approlvition,"  a  committee  of 
one  from  each  colony  was  chosen  on  the  12th  to  rejKirt  a  form  of  confed- 
eration. This  committee  consisted  of  "  a  member  from  each  colony  "  with 
John  Dickinson  of  Delaware  as  chairman.  A  plan  drafted  by  Mr.  Dickinson 
was  reported  on  July  12th  '  and  was  considered  twelve  days  later  in  the  com- 
mittee of  the  whole  house  and  was  the  subject  of  debate  from  time  to  time 
until  N'ovemt)er  15,  1777,  when  it  was  adopted  by  the  Congress  with  some 
important  amendments.-  The  Conjjress  directed  that  "  these  articles  shall  be 
proposed  to  the  legislatures  of  all  the  I'nited  States,  to  l)e  considered,  and  if 
approved  of  by  them,  they  are  advised  to  authorize  their  delegates  to  ratify 
the  same  in  the  Congress  of  the  I'nited  States;  which  1)eing  done,  the  same 
shall  l)ecome  conclusive."  *  .\  circular  letter  to  accompany  the  articles,  in 
accordance  with  this  resolution,  was  adopted  on  Xoveml)er  17,  1777.  A  form 
of  ratification  was  adopted  June  26.  1778.  At  various  dates  the  States  ap- 
proved the  Articles  in  the  manner  recommended  by  the  Congress,  the  last 
State  being  Maryland,  whose  delegates  signed  on  behalf  of  that  State,  March 
1,  1781.  Thereupon  the  L'nited  States  had,  for  the  first  time,  a  form  of 
government  in  law  as  well  as  in  fact  and  on  the  succeeding  day  the  Congress 
met  ioT  the  first  time  under  this  form  of  g.ivernment. 

It  may  be  ol)servc(l  in  this  connection,  l)efore  proceeding  to  an  examina- 
tion of  the  sncccssive  steps  by  which  the  .Articles  of  Confederation  assumed 
form  and  shape,  that  tlie  Congress,  during  this  period,  was  intent  upon  win- 
ning the  independence  which  the  .Articles  were  to  regulate,  and  they  were 
therefore  of  secondary  importance:  that,  for  one  reason  or  another,  the  mem- 
bershi|)  of  the  committee  changed  .so  that,  at  the  date  of  their  adoption  by 
Congress,  only  one  of  the  original  members  of  the  committee  was  still  a  mem- 
l)er  thereof  and  that  even  he  was  ab-ent  on  that  occasion.  Changing  memt)er- 
ship,  changing  conditions,  the  difference--  iK'tween  the  States  and  the  tlilViculty 
of  reconciling  them  consumed  time  and  patience,  with  the  inevitable  result  that 

1  ^  'urnah  of  llu-  Ci'niiuevlal  Congress,  Vol    v,  pp.  546-554. 
s  /'■:!.'..  V'.'!.  i>:.  pp.  9ti7-928. 


»  Jbid.,  p.  925. 


40 


A  CONFEDERATION  OF  SOVEREIGN   STATES 


41 


the  Articles  of  Confederation  were  a  compromise,  just  as  the  Constitution 
of  1787  creating  the  more  perfect  Union  of  the  States  was  a  compromise. 
In  the  Congress  as  in  'he  Convention,  the  large  States  wanted  a  larger  influence 
than  the  smaller,  to  which  the  reply  was  then,  as  now  in  the  society  of  nations : 
a  little  colony  has  its  all  at  stake  as  well  as  a  great  one;  our  identity  is  a 
precious  thing;  we  do  not  propose  to  be  swallowed  up. 

In  addition  to  this  difference  of  view  as  to  the  rights  of  the  States,  large 
and  small,  the  motives  of  the  sections  were  questioned  and  a  lack  of  confi- 
dence expressed,  impossible  to  overcome  on  the  moment,  and  indeed  overcome 
in  the  Constitutional  Convention  only  after  years  of  suffering  in  a  common 
cause  when  the  statesmen  of  all  the  sections  had  learned  to  know,  and  there- 
fore rightly  to  appreciate  one  another.  New  F.ngland,  which  may  be  said  to 
have  brought  alK)ut  the  Revolution,  was  not  popular  and  was  viewed  with 
suspicion  and  jealousy,  Benjamin  Harrison  of  Virginia  saying  that  "  the 
Yankees  "  ruled  as  absolutely  in  Congress  "  as  the  Grand  Turk  in  his  domin- 
ions." '  This  idea  did  not  stop  with  Virginia,  but  pervaded  the  south,  for 
Edward  Rutledge  of  South  Carolina,  wrote: 

The  Force  of  rhcir  .Arms  I  hold  exceeding  Cheap,  but  I  confess  I  dread 
their  over-ruling  Inlbu-nce  in  Council.  I  dread  their  low  Cunninj;  and  those 
.  .  .  Principles  which  Men  without  Cb.Tractcr  and  witliout  Fortune  in  general 
possess,  which  are  so  captivating  to  the  lower  class  of  Mankind. - 

\ew  England,  on  its  part,  viewed  its  neighbors  to  the  south  with  equal  sus- 
picion and  distrust,  not  unmi.xed  with  contempt,  if  John  Adams  is  to  In;  cred- 
ited, who  says  of  them : 

The  dons,  the  bashaws,  the  grandees,  the  patricians,  the  sachems,  the  na- 
bobs, call  them  by  what  name  you  please,  sigh,  and  groan,  and  fret,  and  some- 
times stamp,  and  foam,  and  curse,  but  all  in  vain.' 

In  view  of  such  circumstances  the  wonder  is  that  the  confederation  took  place, 
not  that  the  instrument  of  confederation  was  faulty. 

The  Articles  exist  in  two  forms,  in  the  draft  in  Dickinson's  handwriting, 
laid  liefore  the  Congress  on  July  12,  1776.  and  in  the  amended  form  in  which 
Dickinson's  draft  was  approved  by  the  Congre-s  on  November  l.'^,  1777, 
recommended  to  the  States  for  their  ratification  and  ultimately  ratified  b\ 
them.*  The  essentials  of  the  completed  instrument  are  contained  in  Dickin- 
son's draft,   which  suggests  a   familiarity   with    Franklin's  project,   notably 

«  E.  P.  Obirholtzcr,  Robert  }lorris.  1903.  p,  i7. 

-lo  John  Jay.  June  2f).  1776.  The  Correspondence  and  Public  Pafers  of  John  Jaw  H.  P. 
Jolinston  ed..  Vol.  i.  p.  67. 

^  To  Patrick  Henry.  June  J,  1776.  The  ll'orks  of  J'lhn  Adams,  C.  F.  .^(la^ls  ed..  Vol.  ix. 
p.  .187. 

'The  dates  of  ratification  were:  Massachnsctts,  Rhode  Island.  Connecticut.  New  York. 
Pennsylvania,  Virginia.  South  Carolina.  July  9,  1778  —  North  C.irolina,  July  21.  1778  —  Geor- 
gia, July  24,  1778  — New  Jersey,  November  26,  1778  —  Delaware,  February  22.  1779  — Mary- 
!ar,-!.  y,7,T&,  1.  1781. 


•nil  Smtll 
Slitri 


The  Two 
I'nrms  of 
the  Art  clti 


'  .•;! 


'u. 


^1 


42 


THE   UNITED  STATES:   A   STUDY    IN    INTERSAT10N.\L  ORGANIZATION 


Nature  "f 
tht  Cnioo 


F'ower* 
Renounced 


in  the  fact  that  the  States,  although  independent,  arc  spoken  of  as  colonies. 
Some  of  the  amendment*  are  far  from  happy,  especially  those  indicating  the 
amounts  of  revenue  which  each  colony  is  to  raine  and  to  contribute  to  the 
general  government.  In  the  eleventh  article  of  Dickinson's  draft  it  is  provided 
that  "  All  Charges  of  Wars  and  all  other  F.xpcnces  that  shall  be  incurred 
for  the  common  Defence,  or  general  Welfare,  and  allowed  by  the  United 
States  assembled,  shall  Iw  defrayed  out  of  a  common  Treasury,  which  shall 
be  supplied  by  the  several  Colonies  in  Proportion  to  the  Nunilwr  of  Inhal>- 
itants  of  every  Age,  Sex  and  Quality,  except  Indiatis  not  |)aying  Taxes,  in 
each  Colony  .  .  ."  '  In  the  amended  text  the  contributions  of  the  States  arc 
to  \x  "  in  proportion  to  the  value  of  all  land  within  each  St.itc," — an  amend- 
ment, it  may  l)C  said  in  passing,  which  appears  to  have  made  the  Articles  un- 
workable in  practice,  however  acceptable  it  may  have  l)een  in  theory. 

It  is  not  meant,  in  this  connection,  to  express  a  preference  for  a  poll  as 
distinguished  from  a  land  tax.  but  the  shifts  to  which  the  Congress  was  put 
to  increase  the  value  of  land,  and  thus  increase  the  State  quotas,  exposed  that 
body  to  ridicule  and  brought  the  govcrtiment  into  contempt  in  a  way  which 
would  not  have  been  possible  if  the  text  of  the  original  draft  had  been  adopted. 

The  government  of  the  Confederacy  was  to  In."  styled  the  United  States  of 
America,  in  which  each  State  retained  "its  sovereignt\,  freedom  and  inde- 
pendence, and  every  power,  jurisdiction  and  right,"  not  "expressly  delegated 
to  the  United  States,  in  Congress  assembled."  The  framers  of  this  instru- 
ment were  well  informed  as  to  the  nature  of  the  government  which  they  were 
establishing.  It  was  to  1*  a  Union  of  States,  not  a  .-.in.Lile  State.  It  was  to 
be  a  perpetual  "  league  of  friendship."  "  for  their  common  defence,  the  se- 
curity of  their  liberties  and  their  mutual  and  general  welfare,"  in  which  the 
States  pledged  themselves  to  protect  one  another  against  attack  of  any  kind 
and  from  any  quaner. 

For  the  management  of  the  general  interests  of  the  United  States  there 
was  to  be  a  Congress,  which  should  meet  once  a  year  and  exercise  the  powers 
with  which  the  Confederation  was  vested.  Each  of  the  States  was  to  be 
represented  by  not  less  than  two  nor  more  than  seven  delegates,  appointed  and 
paid  by  them,  who  might  not  ser\e  as  delegates  more  than  three  years  out  of 
any  six.  The  States  had  an  equal  voice,  each  retaining  and  casting  a  single 
vote,  notw  ith.standing  the  greater  or  less  nuniljer  of  deputies  which  they  might 
choo.se  to  send  to  Congress. 

It  was  recognized  that  the  purpose  for  which  the  Union  was  formed  could 
not  be  efTcctcd  if  the  States  did  not,  in  addition  to  the  powers  conferred  upon 
the  Congress,  renounce  the  exercise  of  some  of  the  powers  inherent  in  sov- 
ereignty, freedom  and  independence.     They  therefore  expressly  renounced 

'  Journals  of  the  Coitlinettlal  Conyrtss,  \'o\.  v,  p.  548. 


A   CUKPEOKRATION    OF   SiiVBilKIGN   STATES 


43 


lurrrM 


the  right  of  making  treaties  with  foreiRn  rmintries  or  of  entering  into  treaties 
or  alliances  l)et\veen  themselves  witlnmt  the  consent  of  the  ton|,'r'-  s,  ami 
they  pledged  themselves  not  to  lay  any  imposts  or  duties  which  nii^ht  inter- 
fere with  the  treaties  which  the  Confederation  might  make  with  foreign  coun- 
tries. While  maintainmR  the  right  to  keep  up  a  militia,  they  renounced  the 
right  to  create  and  maintam  an  army  or  navy  without  the  consent  of  Con- 
gress, and  they  likewise  renounced  the  right  to  engage  in  war.  without  the 
consent  of  Congress,  except  when  actually  attacked.  They  re-iervcd  to  them- 
selves the  right  to  appoint  regimental  ofticers  of  the  regiments  raised  for  con- 
tinental service,  but  vested  the  appmntnient  oi  the  general  otVicers  in  Congress. 

They  endowed  the  general  Congress  with  Imiad  t)owers,  suggesting  but  i"pv» 
not  actually  making  of  the  States  a  nation  —  powers  with  which  the  Congress 
under  the  Constitution  has  Iven  invested  and  which  with  sundry  additions 
have  been  deemed  ade(piate,  tloubtless  due  to  the  fact  that  the  government 
under  the  latter  instrument  acts  directly  upon  the  people  of  the  States,  thus 
•executing  the  powers  with  which  it  is  invested  instead  of  relying  upon  the 
States  as  its  agents,  .\inong  these  powers  were  the  sole  right  of  declaring  r>«««n'i 
war  and  concluding  peace,  of  sending  and  receiving  embassies,  of  entering 
into  treaties  and  alliances,  of  issuing  currency,  of  fixing  a  standard  of 
weights  and  measures,  of  establishing  and  regulating  post  offices  throughout 
the  United  States,  of  appointing  all  officers  of  the  army  with  the  exception 
of  regimental  officers  of  contingents  raised  by  the  States,  and  all  naval  otVicers, 
and  of  making  rules  for  the  government  of  the  land  and  naval  forces  and 
directing  their  operations.  The  Congress  was  also  empowered  to  ascertain 
the  sums  of  money  necessary  for  the  service  of  the  United  States  and  to 
apply  it  to  the  public  service,  to  borrow  money  or  emit  bills  of  credit,  to  build 
an<l  equip  a  navy,  to  agree  upon  the  nnml)er  of  land  forces  and  to  make  requi- 
sitions, binding  each  State  to  furnish  its  quota  "  in  proportion  to  the  number 
of  white  inhabitants  in  each  State."  In  addition,  the  Congress  was  spe- 
cifically authorized  to  appoint  a  committee  of  States,  consisting  of  a  delegate 
ffom  each  State,  to  sit  during  the  recess  of  the  Congress  and  to  carry  on  the 
government  during  such  recess,  to  appoint  other  committees  and  civil  officers 
necessary  for  the  management  of  the  general  forces  of  the  United  States  under 
their  direction,  and  to  appoint  from  the  memliers  of  Congress  a  president, 
who  should  not  preside  for  itiore  than  one  in  any  term  of  three  years. 

These  powers  were  granted  because  they  were  felt  to  l)e  necessary  to 
secure  the  independence  of  the  United  States  and  to  maintain  peace  and  har- 
mony among  the  States  themselves,  but  in  granting  thtm  the  States  placed 
what  they  conceived  to  be  a  salutary  check  upon  their  exercise,  providing 
that  the  more  important  of  them,  which  '  ^v  specified,  should  be  exercised 
only  with  the  consent  of  nine  States,  and  ni  the  tenth  of  the  Articles  tliey 


1(i|' 


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II 


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FfSI 


44 


THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


ConKress 
with 

Ap|>eIIate 
Jiirisiltction 


vested  the  committee  of  the  States,  or  any  nine  of  them,  with  power  to  execute 
during  the  recesses  of  Congress  such  powers  as  the  Congress  might  delegate  to 
the  committee,  or  any  nine  of  tiem,  but  withheld  from  them  any  power  which 
the  Congress  itself  could  exerc:;:c  only  with  the  consent  of  nine  States,  all 
of  which  were  specified  and  enumerated  in  the  following  paragraph  of  the  ninth 
article,  which  also  stated  specifically  the  requirement  of  a  majority  in  all  other 
matters : 

The  United  States,  in  Congress  assembled,  shall  never  engage  in  a  war,  nor 
grant  letters  of  marque  and  reprisal  in  time  of  jK-ace,  nor  enter  into  any 
treaties  or  alliances,  nor  coin  money,  nor  regulate  the  value  thereof,  nor  as- 
certain the  sums  and  ex])enses  necessary  for  the  defence  and  welfare  of  the 
I'nited  States,  or  any  of  them :  nor  emit  bills,  nor  borrow  money  on  the 
credit  of  the  United  States,  nor  appropriate  money,  nor  agree  upon  the  num- 
ber of  vessel*  of  war  to  be  built  or  purchased,  or  the  number  of  land  or  sea 
forces  to  be  raised,  nor  appoint  a  commander  in  chief  of  the  army  or  navy, 
unless  nine  states  assent  to  the  same ;  nor  shall  a  question  on  any  other  point, 
except  for  adjourning  from  day  to  day.  be  determined,  unless  by  the  votes  of 
a  majority  of  the  United  States,  in  Congress  assembled. 

The  renunciation  of  the  right  which  sovereign  States  possess,  and  unfor- 
tunately exercise,  of  engaging  in  war  among  themselves,  and  also  the  renun- 
ciation of  the  right  to  enter  into  treaties  and  agreements  with  themselves 
without  the  consent  of  the  Congress,  made  it  necessary  to  provide  some  method 
of  settling  disputes  which  might  arise  between  the  States,  and  which  other- 
wise would  remain  unsettled  Iwcause  of  the  renunciation  of  war  and  of  diplo- 
matic negotiation.  In  certain  cases  of  an  international  character,  which 
might,  in  addition,  give  rise  to  disputes  among  the  States,  the  Congress  was 
authiirized  to  establish  "  rules  for  deciding,  in  all  cases,  what  captures  on 
land  or  water  shall  l)e  legal,  and  in  what  manner  prizes,  taken  by  land  or 
naval  forces  in  the  service  of  the  United  States,  shall  be  divided  or  appro- 
priated: '■  to  a])point  "  courts  tor  the  trial  of  piracies  and  felonies  committed 
on  the  hixh  seas:"  and  to  establish  "courts  for  receiving  and  determining, 
finally,  app^-als  in  all  ca>es  of  captures:  provided,  that  no  meml)er  of  Congress 
shail  be  appointed  a  jutlge  of  any  of  the  said  courts." 

For  disputes  that  might  arise  l)etween  themselves,  for  which  no  tribunal 
existed,  it  was  provided  in  the  ninth  article  "  that  the  United  States,  in  Con- 
gress assembled,  shall  also  In;  the  last  resort  on  appeal  in  all  disputes  and 
ditferrnces  now  subsisting,  or  that  hereafter  may  arise  l)etween  two  or  more 
states  concerning  boundary,  jurisdiction  or  any  other  cause  whatever,"  and 
specifically  mentioning  "  all  controversies  concerning  private  right  of  soil, 
claimed  under  different  grants  of  two  or  more  s'ates."  The  article  likewise 
pro\ided  the  method  of  settlement,  which  was,  briefly: 

The  agents  of  the  Slates  in  controversy  appeared  before  the  Congress, 


II 


A  CONFEDERATION   OF  SOVEREIGN   STATES 


45 


stating  their  controversy  and  asking  for  the  appointment  of  commissioners  to 
form  a  temporary  court  or  tribunal.  If  the  agents  agreed  upon  the  members 
of  the  court  it  was  organized  and  the  case  referred  to  it.  If,  however,  the 
agents  did  not  agree  upon  the  members  of  the  court,  the  Congress  selected 
three  persons  from  each  of  the  thirteen  States,  and  from  the  thirty-nine  thus 
chosen  the  names  were  to  Ixr  struck,  beginning  with  the  defendant,  until  thir- 
teen names  were  left.  From  this  list  of  thirteen  not  less  than  seven  nor  more 
than  nine  were  to  Iw  drawn  by  lot,  and  of  this  numlx;r  any  five  could  form 
the  court.  In  the  absence  of  the  agent  of  any  one  of  the  litigating  States,  or 
upon  his  refusal  to  strike  as  provided  by  the  article,  the  Secretary  of  the 
Congress  was  to  act  in  his  stead. 

It  was  foreseen  that  changes  in  the  Articles  of  Confederation  might  be 
necessary,  but  as  the  instrument  was  a  diplomatic  agreement  no  alteratit)n  was 
to  be  made  unless  agreed  to  in  the  Congress  and  "  afterwards  confirmed  by 
the  legislatures  of  every  State." 
m  From  this  brief  summary  it  will  be  observed  that  the  .Articles  of  Confed- 

^  J  eration  provide  a  government,  with  limited  and  specifically  enumerated  pow- 

ers, whic'  ore  only  to  lie  exercised  with  the  consent  of  nine  or  of  a  majority 
of  the  sovereign,  free  and  independent  States  of  which  the  Confederation  was 
composed.  It  will  be  'iirther  ol)ser\-ed  that  the  legislative  was  likewise  the 
executive  branch  of  the  government,  in  so  far  as  either  existed,  because  the 
President  of  the  Congre-s  was  the  presiding  officer  but  posses.sed  of  no  inde- 
pendent jwwers,  and  the  committee  of  the  States  was  appointed  bv  the  Con- 
gress lor  the  exercise  of  certain,  but  not  all,  of  the  powers  of  the  Congress  ^l'^""''"" 
during  its  recess.  There  is  no  doubt  a  suggestion  of  a  jui!ici.!r\-,  but  the  judi- 
ciary, such  as  it  was,  was  only  constituted  in  the  case  of  the  court  of  appeals 
for  prize  cases,  and  from  time  to  time  temporary  tribunals  were  to  lie  chosen  by 
the  Congress  for  the  trial  of  controversies  l)etween  the  States:  cases  involving 
piracies  and  felonies  were  to  lie  tried  by  the  private  courts  of  the  States. 

There  is  here  no  clear  and  conscious  recognition  of  the  threefold  divi- 
sion of  government  so  conspicuous  in  the  Constitutions  of  each  of  the  thir- 
teen States  composing  the  Confederation  and  a  fundamental  though  unex- 
pressed principle  of  the  Constitution  which  succeeded  the  .Articles  of  Con- 
federation, a  conception  which  was  reenforced  from  French  sources,  due  to 
the  aliiaiue  of  France  which  so  powerfully  contributed  to  making  the  Declara- 
tion of  Independence  a  reality. 

The  defects  of  the  .Articles  of  Confederation  have  been  pointed  out  bv   i'>^i<-ct» 
every  historian  of  the  United  States  who  has  had  occasion  to  deal  with  this 
period  of  our  history-.     The  .Articles  were  indeed  defective.     They  were  not 
however  so  defective  as  the  critics  would  have  us  believe,  and  even  if  thev  were 
it  would  seem  to  l)e  wiser  to  consider  the  difficulties  of  the  situation  anil  to 


judiciary 


1 


Hi 


I  t 

I 


46 


THE  UNITED  STATES:   A  STUDY   IN   INTERNATIONAL  ORGANIZATION 


Excellenct* 


regard  the  Articles  of  Confederation  as  a  step  to  a  more  perfect  Union,  and  a 
very  important  one,  than  to  deny  them  any  claim  upon  our  consideration. 
The  Articles  were  not  to  blame  if  faulty;  it  was  the  defective  vision  of  the 
statesmen  who  drafted  them  and  of  the  States  which  were  unwilling  to  grant 
a  general  government  more  extensive  powers.  It  is  easy  for  us  to  see  tht 
advantages  of  a  closer  union,  because  we  have  benefited  by  its  blessings,  but 
a  union  of  the  kind  of  the  Constitution  was  hitherto  unknown  in  the  history 
of  nations,  and  the  necessity  of  a  broader  and  more  powerful  general  gov- 
ernment, acting  directly  upon  the  States  and  not  through  the  States,  was  not 
likely  to  Ik  granted  by  colonies  which  had  revolted  because  of  the  attempt 
of  the  mother  countrj-  to  impose  its  authority  from  above,  and  to  impose 
the  acts  of  a  supreme  legislature  upon  the  colonies,  overriding  the  local  legis- 
latures, in  order  to  make  the  acts  of  Parliament  apply  to  the  individual  with- 
out consideration  of  the  colonies  as  such. 

The  purpose  of  the  Revolutionary  statesmen  was  to  overthrow  what  they 
considered  the  tyranny  of  the  mother  countr>-,  claiming  supremacy  in  all  mat- 
ters; it  was  not  to  create  a  domestic  tyrant  in  the  place  of  the  imperial  Parlia- 
ment. Without  compromise  and  concession  and  the  safeguarding  of  the 
States  and  their  peoples  against  the  aggression  of  the  general  government, 
American  statesmen  would  not  have  agreed  to  the  provisions  of  the  Constitu- 
tion of  the  United  States;  and  the  different  States,  in  agreeing  to  it,  insisted 
upon  certain  amendments,  which  were  proposed  by  the  first  Congress  under 
the  Constitution  in  1789  and  added  to  that  instrument  two  years  later.  And 
even  then  two  States,  North  Carolina  and  Rhode  Island,  refused  to  ratify 
the  Constitution  and  did  so  only  after  it  had  gone  into  effect  and  the  ten 
amendments  to  it  had  been  proposed  and,  in  the  case  of  Rhode  Island, 
ratified. 

While  recognizing  the  defects  of  the  Confederation,  which  were  indeed 
obvious  to  tho.se  who  wished  union  under  a  constitution  rather  than  a  diplo- 
matic union,  competent  judges  nevertheless  recognized  its  excellences.  It  is 
noteworthy  that  George  \\  ashington,  who  had  suffered  from  the  defects  of 
the  Confederation  more  than  any  man  living,  nevertheless  had  a  good  word 
to  say  for  the  union.'  John  Jay  was  also  qualified  to  speak,  as  he  had  been 
President  of  the  Congress  and  as  Secretary  of  Foreign  Affairs  he  felt  the 
imperfections  of  the  system,  especially  in  so  far  as  foreign  relations  were 
concerned.     Yet  he  was  not  pessimistic,  saying  of  it :     "  Our  federal  govern- 

•  In  a  letter  to  Benjamin  Harrison  dated  January  18.  1784,  General  Washington  said : 
"  Tliat  the  prospect  before  us  is  fair  .  .  .  none  can  deiw ;  .  .  .  I  believe  all  things  will  come 
right  at  last,  .  .  .  The  disinclination  of  the  individual  States  to  yield  competent  powers  to 
Congress  for  the  federal  government,  .  .  .  will,  if  there  is  not  a  change  in  the  system,  be 
our  downfall  as  a  nation."  .Xn  extension  of  federal  powers,  he  believed,  would  "  make  us 
one  of  the  most  wealthy,  happy,  respectable  and  powerful  nations  that  ever  inhabited  the 
terrestrial  glot)e."  \V.  C.  Ford,  The  H'ritingt  of  George  H'ashington,  Vol.  x,  pp.  344-6. 
See  also  Sparks,  li'rilings  of  George  Witshinglon,  Vol.  ix,  p.  11. 


■i 


A   CONFETERATION  OF  SOVEKEIGN   STATES 


47 


ment  has  imperfections,  which  time  and  more  experience  will,  I  hope,  eflfectually 
remedy."  ^  Thomas  Jefferson,  it  will  be  admitted,  was  also  qualified  to  speak, 
and  he  probably  expressed  the  view  of  most  men  of  his  day  when  he  said  that 
"  with  all  the  imperfections  of  our  present  government  it  is  without  compari- 
son the  best  existing,  or  that  ever  did  exist."  "  John  Marshall,  whom  many 
regard  as  the  creator  of  our  union  through  his  opinions  as  Chief  Justice  of 
the  Supreme  Court,  felt  that  if  the  Articles  of  Confederation  preserved  the 
idea  of  union  until  a  more  efficient  system  was  adopted,  which  they  certainly 
did  and  more,  that  then  "  this  alone  is  certainly  sufficient  to  entitle  that  instru- 
ment to  the  respectful  r'^collection  of  the  American  people  and  its  framers  to 
their  gratitude."  ' 

From  a  national  point  of  view  the  Articles  were  defective ;  from  an  inter- 
national point  of  view  they  offered  an  example  of  a  union  of  sovereign,  free 
and  independent  States  much  closer  than  that  of  the  society  of  nations,  and,  in 
spite  of  their  imperfections,  indeed  because  of  their  imperfections,  they  show, 
it  is  l)elieved,  how  the  society  of  nations  can  be  organized  as  a  Confederation 
without  involving  the  sacrifice  of  sovereignty,  should  the  memljers  of  that 
society  be  inclined  to  consider  a  conscious  and  closer  union  than  exists  today. 

While  the  defects  of  the  Confederation  were  the  subject  of  debate  in  the  Jamo 
Congress,  of  discussion  in  the  press,  the  talk  alike  of  men  of  affairs  and  of 
private  citizens,  and  the  topic  of  correspondence  if  not  its  cause,  among  lead- 
ers of  thought  of  the  period,  James  Madison,  to  whose  untiring  efforts  the 
world  is  principally  indebted  for  the  American  Constitution,  has,  as  was  to  be 
expected,  stated  more  elalwrntely  than  any  one  of  his  contemporaries  the  weak- 
ness and  the  inadequacy  of  the  Articles  of  Confederation  in  a  memorandum 
prepared  on  the  eve  of  the  Convention,  called  for  the  sole  and  express  purpose 
of  recommending  "  a  Federal  constitution  adequate  to  the  exigencies  of  gov- 
ernment and  the  preservation  of  the  I'nion." 

In  a  paper  written  well  nigh  fifty  years  after  the  event,  intended,  appar- 
ently, as  a  preface  to  the  Debates  of  the  Convention,  which  he  himself  attended 
and  reported  with  his  own  hand,  he  gives  in  the  following  passage  the  reasons 
why  his  testimony  on  this  point  should  be  accepted. 

Having  ser\ed  as  a  member  of  Cong*,  through  the  period  between  Mar. 
1780  &  the  arrival  of  peace  in  1783,  I  liad  become  intimately  acquainted  with 
the  piiblic  distresses  and  the  causes  of  them.  I  had  observed  the  successful 
opposition  to  every  attempt  to  procure  a  remedy  by  new  grants  of  power  to 


a>.  The  Life  of  John  Jay,  1833,  Vol. 
U'riliiiys  of  Thomas  Jefferson,  Ford 


» Letter  to  Lord  Lansdown,  .April  16,  1786.    \Villi.->m  T 
ii,  p.  18,t. 

-  I.i  Iter  to  E.  Carriiigton,  Paris.  August  4,  1787. 
ed..  Viil   iv,  p.  424. 

In  a  letter  to  M.  de  Mcusnier.  Jan.  24,  1786.  Mr.  Jefferson  said: 

"  The  Confederation  is  a  wonderfidly  perfect  instnmicnt  considering  the  circumstances 
under  which  it  was  formed."     (  Tord  ed..  iv.  141.) 

'The  Lije  of  George  Washington,  by  John  Marshall,  Philadelphia,  1805.  v.  4,  p.  416. 


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48  THE  UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 

Cong*.  I  had  found  moreover  that  despair  of  success  hung  over  the  com- 
promising provision  of  April  1783,  for  the  Public  necessities,  which  had  been 
so  elaborately  planned  and  so  impressively  recommended  to  the  States.  Sym- 
pathizing, under  this  aspect  of  affairs,  in  the  alarm  of  the  friends  of  free  Gov', 
at  the  threatened  danger  of  an  abortive  result  to  the  great  &  perhaps  last  ex- 
periment in  its  favour,  I  could  not  be  insensible  to  the  obligation  to  co-operate 
as  far  as  T  could  in  averting  the  calamity.  With  this  view  I  acceded  to  the 
desire  of  my  fellow  Citizens  of  the  County  that  I  should  be  one  of  its  repre- 
sentatives in  the  Legislature,  hoping  that  I  might  there  best  contribute  to  in- 
culcate the  critical  pr  ure  to  which  the  Revolutionary  cause  was  reduced, 
and  the  merit  of  a  leading  agency  of  the  State  in  bringing  about  a  rescue  of 
the  L'nion,  and  the  blessings  of  liberty  staked  on  it,  from  an  impending 
catastrophe 

It  required  but  little  time  after  taking  my  seat  in  the  House  of  Delegates  in 
May  1784,  to  discover  that  however  favorable  the  general  disposition  of  the 
Stale  might  be  towards  the  Confederacy  the  Legislature  retained  the  aversion 
of  its  predecessors  to  transfers  of  power  from  the  State  to  the  Gov',  of  the 
L'nion ;  notwithstanding  the  urgent  demands  of  the  Federal  Treasury ;  the 
glaring  inadequacy  of  the  authorized  mode  of  supplying  it.  the  rapid  growth 
of  anarchy  in  the  Fed'.  System,  a.id  the  animosity  kindled  among  the  States 
by  their  conflicting  t'^gulations.' 

It  is  evident  tc  us  of  the  present  day,  from  an  inspection  of  his  writings 
and  from  his  leadership  in  the  Constitutional  Convention,  that  James  Madi- 
son was  the  fittest  by  study  and  experience  to  propose  the  basis  of  a  Consti- 
tution for  the  more  perfect  union,  and  his  contemporaries,  without  the  means 
of  knowledge  at  our  disposal,  so  considered  him.  One  of  his  colleagues  in 
the  Federal  Convention,  writing  of  him,  says: 

M^  Maddison  is  a  character  who  has  long  been  in  public  life;  and  what 
is  very  remarkable  every  Person  seems  to  acknowledge  his  greatness.  He 
blends  together  the  profound  politician,  with  the  Scholar.  In  the  manage- 
ment of  every  great  question  he  evidently  took  the  lead  in  the  Convention, 
and  tho'  he  cannot  be  called  an  Orator,  he  is  a  most  agreeable,  eloquent,  and 
convincing  Speaker.  From  a  .spirit  of  industry  and  application  which  he 
possesses  in  a  most  eminent  degree,  he  always  comes  forward  the  best  in- 
formed Man  of  any  point  in  debate.  The  aiTairs  of  the  United  States,  he 
perhaps,  has  the  most  correct  knovvlcdge  of.  of  any  Man  in  the  L'nion.  He 
has  been  twice  a  Mcml)er  of  Congress,  ,ind  was  always  thought  one  of  the 
ablest  Members  that  ever  sat  in  that  Council.' 

It  was  not  by  cha;  ce  that  Mr.  Madison  made  this  impression  upon  his 
fellow  delegate,  who  in  this  matter  spoke  for  his  contemporaries.  He  had 
represented  his  State  in  the  Continental  Congress  and  was  aware  of  the 
defects  of  the  Confederation  from  actual  cxpeKcnce  in  that  Ix/dy.  He  was 
familiar  with  every  detail  of  the  .\rticles  of  Confederation,  and  as  a  prep- 
aration for  his  work  in  the  Convention  he  had  set  forth  in  connected  form 
the  defects  of  the  Confederation  in  a  memorandum,  and  he  had  likewise 


'  The  H'ritinfis  of  James  ^tm^isf^n.  GaitlanI  Hunt  ed..  Vol.  ii,  pp  .196-7, 
'Notes  of  Major  Willi.itti  I'itrce  on  t'le  Ff<ler.i1  Convention  of  1787.  .-f 
view.  Vol.  iii,  p.  3J1. 


merican  Historical 


A   CONFEDERATION  OP  SOVEREIGN   STATES 


49 


embodied  in  another  memorandum  the  defects  of  the  known  instances  of 
confederations,  in  so  far  as  they  could  be  gathered  from  historical  records 
then  at  his  disposal.'  He  arranged  the  defects  of  the  Confederation  under 
eleven  headings  and  accompanied  each  with  apt  illustrations.*  Of  this  im- 
portant document,  which  is  unfortunately  too  long  to  be  quoted  in  its  entirety, 
as  it  deserves  to  be,  the  following  is  a  brief  analysis : 

1.  Failure  of  the  States  to  comply  with  the  Constitutional  requisitions. 
This  defect  Mr.  Madison  considered  to  be  so  obvious  as  to  require  neither 

illustration  nor  argument.  It  resulted,  he  said,  "  so  naturally  from  the  num- 
ber and  independent  authority  of  the  States,  and  has  been  so  uniformly  exem- 
plified in  every  similar  Confederacy,  that  it  may  l)e  considered  as  not  less 
radically  and  permanently  inherent  in,  than  it  is  fatal  to  the  object  of,  the 
present  system." 

2.  Encroachments  by  the  States  on  the  federal  authority. 

As  examples  of  this  defect  he  cites  the  wars  and  treaties  of  Georgia  with 
the  Indians,  the  compacts  between  Virginia  and  Maryland  and  between  Penn- 
sylvania and  New  Jersey,  the  troops  raised  and  kept  up  by  Massachusetts 
without  the  consent  of  the  Confederation,  as  required  by  the  sixth  of  the 
articles. 

3.  Violations  of  the  law  of  nations  and  of  treaties. 

Under  this  heading  he  said  that  "  not  a  year  has  passed  without  instances 
of  them  in  some  one  or  other  of  the  States,"  and  as  examples  he  cites  the 
Treaty  of  Peace  with  Great  Britain,  the  treaty  with  France,  the  treaty  with 
Holland,  each  one  of  which  had  been  violated,  and  although  these  nations  had 
lieen  forebearing,  or,  as  Madison  said,  "  have  not  been  rigorous  in  animad- 
verting on  us,"  indulgence  was  not  always  to  be  expected  in  the  future. 

4.  Trespasses  of  the  States  on  the  rights  of  each  other. 

Under  this  caption  Mr.  Madison  has  a  somewhat  imposing  and  alarming 
list,  citing  specifically  the  law  of  his  own  State  restricting  foreign  vessels  to 
certain  ports,  and  the  laws  of  Maryland  and  New  York  in  favor  of  vessels  of 
their  own  citizens.  Among  the  additional  examples  he  mentions  are  the  issue 
of  paper  money,  making  property  a  legal  tender,  acts  of  the  debtor  State  in 
favor  of  debtors,  affecting  n  t  only  citizens  of  the  other  States  but  citizens 
ur  subjects  of  foreign  nations,  and  finally  the  practice  of  many  States  in 
violating  the  spirit  of  the  Articles  of  Confederation  by  putting  the  goods  and 
products  of  the  members  of  the  Union  upon  the  same  footing  with  those  of 
foreign  countries. 

5.  Want  of  concert  in  matters  where  common  interest  requires  it. 

>  U'nlinns  of  Sladison.  Hunt  eil.,  Vol.  ii,  pp.  .W-.W.     See  also  memorandi.m  contained 
letters  and  Other  llrilmgs  of  James  Madison,  pnb.  by  order  of  Congress,  1865.  Vol.  i,  pp. 


m 


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- 1  hid.,  pp.  361-369.    Also  see  pp.  391-412  for  sketch  on  the  origin  of  the  Constitutional 

vonventiun 


50 


THE   UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 


To  this  defect  Mr.  Madison  attributes  the  deplorable  state  of  commerce 
throughout  the  States,  a  weakness  also  affecting  the  national  dignity,  inter- 
est and  revenue.  T(i  this  clause  he  also  traces  inferior  but  still  important 
defects,  such  as  the  want  of  uniformity  in  laws  concerning  naturalization  and 
literary  property,  the  lack  of  provision  for  national  seminaries,  for  grants  of 
incorporation  for  national  purposes,  for  canals  and  other  works  of  general 
utility. 

6.  Want  of  guaranty  to  the  States  of  their  Constitutions  and  laws  against 
internal  violence. 

The  hands  of  the  Confederation  were,  he  says,  tied  in  this  matter,  because 
the  Articles  are  silent  as  to  it,  and  a  very  distressing  example  of  this  is  men- 
tioned in  his  correspondence,  that  of  Shays'  rebellion  in  Massachusetts  in  1787, 
which  also  produced  a  profound  impression  upon  contemporary  opinion. 

7.  Want  uf  sanction  to  the  law  s,  and  of  coercion  in  the  Government  of  the 
Confederacy. 

Mr.  Madison  considered  a  sanction  as  essential  to  the  idea  of  law  as 
coercion  is  to  that  of  government.  This  defect  of  the  Confederation  was 
due  to  the  fact  that  the  Articles  did  not  form  a  "  Political  Constitution,"  but 
were,  as  he  says,  "  nothing  more  than  a  treaty  of  amity,  of  commerce,  and  of 
alliance  Ijctwien  independent  and  Sovereign  States."  Therefore,  there  was 
no  central  government  and  there  w  as  a  lack  of  power  in  the  Congress  to  compel 
oljedience  to  law ;  and  in  Madison's  opinion  coercion  in  government  was  as 
essential  as  the  sanction  of  law.  The  experience  of  the  Congress  had,  he 
said,  demonstrated  "  that  a  unanimous  and  punctual  obedience  of  13  inde- 
pendent Ixxlies  to  the  acts  of  the  federal  Government  ought  not  to  be  calcu- 
lated on,"  and  without  the  supremacy  of  the  acts  of  the  Union,  interpreted 
and  applied  in  the  sense  in  which  they  were  meant  by  the  Congress,  it  was 
impossil)le  to  better  conditions  or  indeed  to  preserve  the  Union. 

8.  Want  of  ratification  by  the  people  of  the  Articles  of  Confederation. 
Mr.  Madison  attached  very  great  importance  to  this  defect,  as  appears 

from  his  correspondence  and  also  from  his  attitude  in  the  Convention,  recog- 
nizin,!,'  clearly  that  a  ratification  by  the  people  within  a  State  would  make  it 
the  law  of  the  people,  as  well  as  of  the  State,  and  that  an  act  or  law  ratified 
by  the  peoi)le  would  give  the  government  a  right  to  proceed  directly  against 
the  person  violating  the  act  or  law.  instead  of  appealing  to  the  State  to  correct 
the  violation. 

These  consequences  he  considered  as  characteristic  of  what  he  called  a 
political  constitution,  whereas  in  the  Confederation,  which  he  properly  re- 
garded as  a  league  of  sovereign  powers  and  not  as  a  political  constitution. 
the  I'nion  could  only  act  uj/on  the  State  and  through  the  State  upon  it- 
citizens.  In  this  connection,  he  also  pointed  out  the  danger  to  the  Union  of 
the  violation  of  the  compact  by  a  State,  which  would  give  to  the  other  mem- 


A   CONFEDERATION   OF  SOVEBEICN   STATES 


51 


bers  of  the  diplomatic  union  the  right  to  withdraw  and  thus  to  destroy  the 
Confederation. 

9.  Multiplicity  of  laws  in  the  several  States. 

This  is  a  defect  in  a  nation  or  in  a  State,  which  apparently  can  not  be 
corrected  without  a  change  of  mind,  heart  and  conduct  on  the  part  of  members 
of  legislatures.  If  Mr.  Madison  expected  far  less  under  a  "  Political  Con- 
stitution "  his  reputation  as  a  prophet  would  be  shattered,  for  the  laws  of  the 
Congress  under  the  Constitution  and  of  the  different  States  since  the  da-  of 
its  adoption  are  so  constantly  amended  that  we  do  not  know  whether  ,mr 
knowledge,  so  painfully  acquired  during  a  recess  of  these  lawmaking  bodies, 
has  been  repealed  overnight  by  their  action  when  m  session.  His  comments 
on  this  point  are,  however,  so  interesting  that  they  are  quoted  rather  than 
paraphrased.    Thus  he  says : 

Among  the  evils  then  of  our  situation,  may  well  be  ranked  the  multiplicity 
of  laws  from  which  no  State  is  exempt.  As  far  as  laws  are  necessary  to 
mark  with  precisian  the  duties  of  those  who  are  to  obey  them,  and  to  take 
from  those  who  arc  to  administer  them  a  discretion  which  might  be  abused, 
their  number  is  the  price  of  liberty.  As  far  as  laws  exceed  this  limit  they  are 
a  nuisance ;  a  nuisance  of  the  most  pestilent  kind.  Trv  the  Codes  of  the  sev- 
eral States  by  this  test,  and  what  a  luxuriancy  of  legislation  do  they  present. 
The  short  period  of  independency  has  filled' as  many  pages  as  the  century 
which  preceded  it.  Every  year,  almost  every  session,  adds  a  new  volume. 
This  may  be  the  effect  in  part,  but  it  can  only  be  in  part,  of  the  situation  in 
which  the  revolution  has  placed  us.  A  review  of  the  several  Codes  will  shew 
that  every  necessary  and  useful  part  of  the  least  voluminous  of  them  might 
be  compressed  into  one-tenth  of  the  compass,  and  at  the  same  time  be  ren- 
dered ten-fold  as  perspicuous. 

10.  Mutability  of  the  laws  of  the  States. 

Mr.  Madison  was  aware  that  his  previous  heading  practically  included  this 
one.  Xevertheless  he  stated  it  for  the  sake  of  completeness  and  as  his  obser- 
\  ations  upon  it  have  not  lost  their  point  they  are  quoted  to  give  full  effect  to 
the  previous  objections.     Thus  he  says : 

This  evil  is  intimately  connected  with  the  former,  yet  deser\-es  a  distinct 
notice,  as  it  emphatically  denotes  a  vicious  lepislntion.  \Vc  daily  see  laws  re- 
pealed or  superseded  before  any  trial  can  have  l)een  made  of  their  merits  and 
even  before  a  knowledge  of  them  can  have  reached  the  remoter  districts 
wuhin  which  they  were  to  operate.  In  the  regulations  of  trade,  this  instabil- 
ity becomes  a  snare  not  only  to  our  citizens,  but  to  foreigners  also. 

11.  Injustice  of  the  laws  of  the  States. 

This  subject  is  likewise  connected  with  the  previous  ones,  because  it  is 
not  merely  the  multiplicity  of  the  laws  and  the  numerous  changes  involved 
to  which  he  objects.  They  were  even  at  times  unjust,  in  addition  to  other 
vices,  and  he  was  especially  anxious  to  (\\u\  the  reasons  fur  the  injustice  of 
the  laws  of  the  different  States,  in  the  belief  that  when  the  reasons  had  Ijeen 


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In 


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52 


THE   UNITED  STATES:   A  STUDY   IN    INTEKNATIONAL  ORGANIZATION 


Pcrtonal 
Intereni 


Sovereignty 


disclosed  the  remedy  would  follow  close  upon  their  footsteps.  The  causes  of 
the  evils  he  held  to  be.  first,  in  the  representative  bodies,  and  second,  in  the 
people  themselves ;  in  the  representative  bodies  because  representative  appoint- 
ments are.  he  says,  sought  from  three  motives:  "  1.  Ambition.  2.  Personal 
interest.  3.  Public  good."  And  he  felt  obliged  to  state  that  "  Unhappily, 
the  two  first  are  provea  by  experience  to  be  most  prevalent." 

But  he  regarded,  and  properly,  the  people  to  be  more  at  fault,  because  if 
they  wanted  different  representatives  they  could  have  them,  and  if  they  insisted 
upon  just  laws  their  representatives  would  frame  them.  He  finds  the  chief 
fault  to  be  in  the  fact  that  civilized  societies  are  divided  into  different  interests 
and  factions,  "  creditors  or  debtors,  rich  or  poor,  husbandmen,  merchants,  or 
manufacturers,  members  of  different  religious  sects,  followers  of  different 
political  leaders,  inhabitants  of  different  districts,  owners  of  different  kinds 
of  property.  &c..  &c."  He  mentions  three  correctives,  but  finds  them  to  be 
wanting  whenever  the  interest  of  the  individual  seems  to  suggest  their  viola- 
tion. They  are:  "  1.  A  prudent  regard  to  their  own  good,  as  involved  in 
the  general  and  permanent  good  of  the  community."  As  a  result  of  expe- 
rience Mr.  Madison  holds  that  this  consideration  lacks  decisive  weight,  and 
he  includes  nations  as  well  as  individmls.  saying,  "  It  is  too  often  forgotten, 
by  nations  as  well  as  by  individuals,  that  honesty  is  the  best  policy."  The 
second  is  a  respect  for  character,  and  here  again  he  finds  that  this  corrective 
does  not  prevent  injustice,  because,  as  he  says,  "  In  a  multitude  its  efficacy  is 
diminished  in  proportion  to  the  number  which  is  to  share  the  praise  or  the 
blame,"  and  even  if  it  prevails  within  a  society  it  is  doubtful  if  it  crosses  the 
frontier  and  extends  into  adjoining  provinces  or  States,  inasmuch  as  actions 
are  constantly  committed  within  one  State  affecting  strangers  beyond  its  con- 
fines. The  third  is  religion,  which  he  mentions  only  to  reject,  saying.  "  The 
conduct  of  every  popular  assembly  acting  on  oath,  the  strongest  of  religious 
ties,  proves  that  individuals  join  without  remorse  in  acts,  against  which  their 
consciences  would  revolt  if  proposed  to  them  under  the  like  sanction,  sep- 
arately in  their  closets." 

As  the  result  of  his  careful  and  pro'  .jiged  study  of  this  subject,  he  finds 
that  "The  great  desideratum  in  Government  is  such  a  modification  of  the 
sovereignty  as  will  render  it  sufficiently  neutral  between  the  different  interests 
and  factions  to  controul  one  part  of  the  society  from  invading  the  rights  of 
another,  and.  at  the  same  time,  sufficiently  controuled  itself  from  setting  up 
an  interest  adve-v  to  that  of  the  whole  society. '  and  he  concludes  by  con- 
sidenng  the  different  forms  of  government  and  the  extent  to  which  they  may 
be  counted  upon  to  meet  his  re(|uirements.     Thus  he  says : 

_      In  absolute  .Monarchies  the  prince  is  sufficiently  neutral  towards  his  sub- 
jects, but  frequently  sacrifices  their  happiness  to  his  ambition  or  his  avarice. 


A   CONPEOBKATION   OF  SOVEREIGN  STATES  53 

ItlT^^  Republics,  the  sovereign  will  is  sufficiently  controuled  from  such  a 

•acnfite  of  the  entire  Socuty,  but  is  not  sufficiently  neutral  towards  the  parts 

conipt.Miig  It      As  a  liniind  monarchy  tcmi>ers  the  evils  of  an  ahsolntc  one  • 

•o  an  extensive  Republic  meliorates  the  administration  of  a  small  Repuirc.' 

The  form  of  government  which  he  himself  felt  necessary  was  later  lai.l 

before  the  Federal  Convention  by  Mr.  Randolph  in  what  has  been  called  the 

Virginia  plan,  which  not  only  bears  the  impress  of  his  experienced  and 

scholarly  mind  but  is  in  his  own  handwriting  as  well.     He  was  not.  however 

unconscious  of  the  fact  that  something  was  needed  alwve  and  bevond  the  form' 

of  government,  and  it  is  the  conscious  expression  of  this  fact  that  gives  point 

and  value  to  his  observations.     Governors  of  the  States  must  be  worthy  of 

the  trust,  and  with  this  he  aptly  closes  his  observations : 

An  auxiliary  desideratum  for  the  melioration  of  the  Republican  form  is 
such  a  process  of  elections  as  will  most  certainly  extract  from  the  mass  of 
the  society  the  purest  and  noblest  characters  which  it  contains;  such  as  will 
at  once  feel  most  strongly  the  proper  motives  to  pursue  the  end  of  their  aiv 
potntment,  and  be  most  capable  to  devise  the  proper  means  of  attaining  it. 

Before  the  ratification  of  the  Articles  of  Confederation  bv  the  last  of  the 
thirteen  States  on  March  1.  1781.  a  movement  had  begun  to  amend  the  Articles 
in  order  to  make  them  more  adequate  for  governmental  purposes,  which  pro- 
longed through  a  series  of  years,  led  to  the  call  of  the  Constitutional  Convention 
which  met  in  Philadelphia  in  the  summer  of  1787.  an  assembly  which  replaced 
the  Articles  by  a  newer  and  more  perfect  instrument  of  government  called  the 
Constitution,  under  which  the  United  States  on  the  one  hand  and  the  States  on 
the  other  have  waxed  great  and  have  prospered.  The  Congress  recognized 
that  the  work  of  its  hands  was  imperfect,  but  its  members  felt  that  the  Articles 
of  Confederation  embodied  all  of  the  OMiccssions  from  the  States  which  they 
could  obtain  at  that  time,  and  they  did  not  recognize,  perhaps.  Iiefore  expe- 
riencing  them,  the  defects  of  that  instrument  of  government  which  is  known 
as  the  Articles  of  Confederation. 

Jonathan  Elliot,  to  whom  we  arc  under  the  deepest  obligation  for  his 
Debates  in  the  State  Conventions  on  the  adoption  of  the  Federal  Constitution. 
and  the  debates  in  the  Convention  itself,  entitled  the  section  devoted  to  the 
period  l«twcen  the  ratification  of  the  Articles  and  the  call  of  the  Convention. 
"  Proceedings  which  led  to  the  Adoption  of  the  Constitution  of  the  U:iite<l 
States."  »  And  in  this  section  he  enumerates  four  proposals,  which  failed  — 
but  they  may  be  termed  happy  failures,  for  it  is  because  of  them  that  the  call 
went  out  for  a  convention  which  framed  the  more  perfect  Union.  These  four 
are: 

First,  the  proposal  to  amend  the  eighth  of  the  Articles  of  Confederation,  in 


Mr. 

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54 


THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 


order  to  base  the  quotas  upon  population  which  the  States  should  contribute 
to  the  government  rather  than  upon  the  value  of  the  realty  in  each  of  the 
States ; 

Second,  a  proposal  to  authorize  the  Congress  to  levy  a  duty  of  five  per 
cent,  ad  valorem  upon  all  goods,  wares,  and  merchandise  of  foreign  growth 
and  manufacture  imported  into  the  United  States  after  the  1st  day  of  May, 
1781,  and  to  authorize  the  United  States  to  levy  a  like  duty  of  five  per  cent, 
on  all  prizes  and  prize  goods  condemned  in  the  court  of  admiralty  of  .-ny  of 
the  States,  in  order  that  the  revenues  arising  therefrom  should  be  used  to  dis- 
charge the  principal  and  interest  of  the  debts  contracted  or  which  should  be 
contracted  on  the  faith  of  the  United  States  during  the  "  present  war  " ; 

Third,  a  proposal  to  invest  the  United  States  with  the  power  to  levy  duties 
upon  certain  specified  goods  imported  into  the  United  States  from  any  foreign 
port,  island  ir  plantation  during  a  period  of  twenty-five  years,  to  raise  from 
the  States  for  a  period  of  twenty-five  years  a  revenue  of  $1,500,000  annually 
to  extinguish  the  debt  contracted  on  the  faith  of  the  United  States  according 
to  quotas  specified  in  the  resolution ; 

Fourth,  to  amend  the  Articles  of  Confederation  by  investing  the  United 
States  in  Congress  assembled,  for  a  period  of  fifteen  year?,  with  the  power  to 
forbid  the  States  to  import  or  tu  export  goods  in  vessels  l>elonging  to  nations 
with  which  the  United  States  did  not  have  treaties  of  commerce,  and  to  em- 
power Congress,  for  a  like  period  of  fifteen  years,  to  forbid  the  subjects  of 
foreign  States  residing  within  the  United  States  to  exjKjrt  goods,  wares  or 
merchandise  unless  authorized  so  to  do  by  treaty. 

Finance  and  commerce  were  the  rocks  upon  which  the  little  ship  of  state 
well  nigh  foiindereil,  but  the  failure  of  the  States  to  respond  to  the  recom- 
mendations, indeed  we  might  almost  say  the  prayers,  of  the  Congress  led  to 
private  initiative,  in  the  hope  that  it  niiylu  succeed  where  public  initiative  had 
failed.  The  trouble,  as  we  see  today,  was  one  that  might  be  remedied  with- 
out affecting  the  rights  of  the  States,  by  investing  the  Congress,  through  its 
own  agents,  with  the  power  of  collecting  revenue  at  the  source,  in  accordance 
with  the  consent  ami  the  authorization  of  the  States.  In  this  way  the  general 
government  wmiKl  ha\e  l)een  able  to  sue  and  to  collect  the  revenue  from  the 
individual,  whereas  the  government  could  not,  under  the  law  of  nations,  sue 
a  sovereign,  free  and  independent  State  to  collect  the  quotas  fixed  by  the  Con- 
gress for  the  States  in  accordance  with  the  Articles  of  Confederation;  and  the 
States  were  unwilling  to  invest  the  United  States  in  Congress  assembled  with 
the  right  to  sue  the  State,  and  to  compel  by  force,  if  necessarv,  compliance 
with  its  obligations.  The  framers  of  the  Confederation  did  not  see,  because 
they  lacked  experience,  that  a  provision  of  this  kind  would  not  only  provide 
the  revenue  needed  by  the  general  governnjein,  but  would  obviate  quarrels  and 


A   CONFEDCRATUr.    OF   SOVEUICN  STATU 


55 


ill  feeling  between  the  States  and  their  citizens,  as  the  Sute  would  not  need, 
for  the  purpose  of  the  Union,  to  thrust  its  hand  into  the  pockets  of  its  citizens. 

This  matter  has  never  Ijecn  put  more  clearly  than  by  Alexander  Hamilton 
in  his  speech  in  the  New  York  Convention  advocating  the  ratification  of  the 
Constitution.  "  It  has  been  observed."  he  said,  that  "  to  coerce  the  states  is 
one  of  the  maddc.it  projects  that  was  ever  devised."  And  he  asked.  "  can  we 
believe  that  i)n«  state  \  ill  ever  suffer  itself  to  l)c  used  as  an  instrument  of 
coercion?"  In  his  opinion,  and  Hamilton  was  no  advocate  of  state  rights, 
it  could  not  be  done,  ami  it  should  not  be  tried.  "  The  thing  is  a  dream."  he 
said,  "  it  is  impossible."  On  the  theory  of  government  which  had  l)ecn  tried 
and  found  wanting,  he  added.  "  Then  we  are  brought  to  this  dilemma  —  either 
a  federal  standing  army  is  to  enforce  the  requisitions  or  the  federal  treasury 
is  left  without  ..pplies.  and  the  government  without  support."  What  was  to 
be  done,  or  as  he  expressed  it  in  the  language  of  debate:  "  What,  sir,  is  the 
cure  for  this  great  evil  ?  "  This  question  he  answered,  in  such  a  way  as  to 
show  not  merely  the  nature  of  the  solution  but  the  solution  itself :  "  .Xothing, 
but  to  enable  the  national  laws  to  ojierate  on  individuals,  in  the  same  manner 
as  those  of  the  states  do.     This  is  the  tnie  reasoning  upon  the  subject,  sir."  • 

But  to  return  to  the  role  of  private  initiative  in  the  creation  of  the  more 
perfect  Union.  The  situation  of  the  States  in  matters  of  c  nmerce  was 
that  which  would  arise  between  sovereign,  free  and  independent  States  in 
which  there  was  not  a  customs  union,  such  as  the  German  States  were  wise 
enough  to  conclude  in  the  middle  of  the  19th  Century.  As  -tated  by  a  keen- 
eyed  observer  of  the  period:  "  The  states."  Mr.  Madison  .said.  "  having  no 
convenient  ports  for  foreign  commerce,  were  subject  to  be  taxed  by  their 
neighbors,  thro'  whose  ports,  theii  commerce  was  carried  on.  New  jersey, 
placed  Iwtween  Phil"  &  X.  York,  was  likened  to  a  cask  tapped  at  both  ends; 
and  .\.  Carolina,  between  Virg*  &  S.  Carolina  to  a  patient  bleeding  at  both 
.Arms."  *  The  Congress  foresaw  the  consetiuences  of  such  a  condition,  and 
had  already  laid  it  before  the  States,  but  w  ithout  avail,  in  the  following  -mpres- 
sive  language : 

The  situation  of  commerce  at  this  time  claims  the  attention  of  the  several 
states,  and  few  objects  of  greater  importance  c  nn  present  themselves  to  tlieir 
notice.  The  fortune  of  every  citizen  is  interested  in  the  -ucccss  thereof; 
for  it  is  the  constant  source  of  wealth  and  incentive  to  '  Justry;  .ind  the 
value  of  our  produce  and  our  land  must  ever  rise  or  fall  in  proportion  to  the 
pros{)erous  or  adverse  state  of  trade.' 

Private  initiative  supplied  the  remedy.  Maryland  and  \'irginia  were  in- 
terested in  the  navigation  of  Chesapeake  Bay  and  its  tributaries  ar  1  they  h;ul 
come  to  a  satisfactory  working  agreement  in  the  matter.     But  rcnnsylvania 


C'tcrcion 
olSutn 


PrivatF 
Initiative 


'  r'iii.-.t.  rjii'^iiis.  \\,\.  ii.  PI.,  2,u.  2:ii. 

'II  riiingi  of  Madison,  lliiiit  cd..  Vol.  ii, 
•  Elliot,  Debaici,  Vol.  i,  p.  107. 


'! 


Ill 


i 


'H 


iii'ii 


■;  n 


^!  ii 


Ii 


p.  395. 


I  "T 


56 


THE    UNITED  STATF.S :   A   iTUDY   IN    INTERNATIONAL  OMCAMZATION 


C'lnvrnlion 
at  Annjpuli^ 


Another 

Cunvcntion 

I*ropoied 


and  Delaware  were  likewiw  interentccl  parties,  either  as  hordcrinR  on  the  Bay 
and  its  tributaries  or  as  affected  liy  their  reRulatinn.  In  a  less  degree  all  the 
States  were  interested  in  as  far  as  they  were  affected,  whereas  the  adjciining 
States  were  primarily  concerned.  Hence,  it  occurred  to  Mr.  Madison  to  have 
Virginia  prop«>se  a  meeting  of  delegates  of  the  States,  in  order  to  see  what 
could  be  done  or  what  could  lie  proposed  to  Iwttcr  conditions  in  that  matter 
of  trade  and  commerce.  Therefore,  on  January  21,  1786,  the  Virginia  legis- 
lature appointed  certain  persons,  amorg  whom  may  Iw  mentioned  Edmund 
Randolph.  James  Madis<in  and  George  Mason,  as  commissioners  to  "  meet 
such  commissioners  as  may  Ikt  appcjinted  by  the  other  states  in  the  Union,  at  a 
time  and  place  to  l)e  agreed  on.  to  take  into  consideration  the  trade  of  the 
United  Slates;  to  examine  the  relative  situation  and  trade  of  the  said  States; 
to  consider  how  far  a  uniform  system  in  their  commercial  regulations  may  !« 
necessary  to  their  common  interest  and  their  permanent  harmony;  and  to  re- 
port to  the  several  states  such  an  act  relative  to  this  great  object  as.  when 
unanimously  ratified  by  them,  will  enable  the  ITnitcd  States  in  Congress  assem- 
bled effectually  to  provide  for  the  same;  that  the  said  commissioners  shall 
immediately  transmit  to  the  several  states  copies  of  the  preceding  resolution, 
with  a  circular  letter  re<|uesting  their  concurrence  therein,  and  proposing  a 
time  and  place  for  the  meeting  aforesaid."  ' 

In  response  to  this  invitation  —  for  which  there  was  no  authority  in  the 
Articles  of  Confederation,  and  indeed  there  ha  >en  no  authorization  for  the 
action  of  Maryland  and  Virginia  in  regulating  their  interests  in  the  Chesa- 
peake and  its  tributaries  —  issued  by  the  "^-^.tc  of  X'irginia.  nine  States  ap- 
pointed delegates  to  meet  at  Annapolis  on  the  first  Monday  in  Septemljer, 
1786.  When  the  day  came  <U-legates  had  arrived  only  from  the  five  States 
of  Xew  York.  New  Jersey,  Pennsylvania.  Delaware  and  Virginia;  but  among 
these  delegates  were  well  kni)wn  names  —  Alexander  Hamilton  and  Egbert 
Benson  of  Xcw  N'ork.  William  Patterson  of  Xew  Jersey.  John  Dickinson  of 
Delaware.  Edmund  Randolph  and  James  Madison  of  X'irginia.  The  distin- 
guished veteran  and  colonial  statcsmat..  John  Dickinson,  was  elected  chairman 
of  the  Convention,  which  met  on  Septemlier  11.  1786.  but  in  the  absence  of  the 
other  States  the  members  present  wisely  limited  themselves  to  a  recommenda- 
tion drafted  by  Hamilton,  stating  it  to  \k  "  their  unanimous  conviction,  that 
it  may  essentially  tend  to  advance  the  interests  of  the  Union,  if  the  states,  by 
whom  they  have  l)een  respectively  delegated,  would  themselves  concur,  and  use 
their  endeavors  to  prwure  the  concurrence  of  the  other  states,  in  the  appiint- 
nient  of  commissioners,  to  meet  at  Philadelphia  on  the  second  Monday  in 
May  next  [1787J.  to  take  into  consideration  the  situation  of  the  United  States, 
to  devise  such  further  provisions  as  shall  appear  to  them  necessary  to  render 

'  Elliot,  debates.  Vol. 


pp. 


A   CONKEDtRATIos-    OF   Sf.VEREtCN    STATES  57 

the  Constitution  of  the  Federal  government  adequate  to  the  exigencies  of  tl.c 
Lnion.  and  to  report  such  an  act  f.,r  that  pur,M.se  to  the  United  States  in 
Congress  assembled  a*,  when  agreed  to  by  ,hem.  and  afterwards  confirmed 
by  the  legislatures  of  every  State,  will  cfTectually  pr.nide  for  the  same  • ' 

The  Convention  was  somewhat  emluirrasscd  in  the  matter  of  Congress  as 
the  meeting  at  Annapolis  was  without  its  consent  and  therefore  unconstitu- 
tional.    As.  however.  Congress  would  have  to  act  if  the  Articles  of  Confed- 


•t    :l,c 


render  the  Constitution  of  the  I'edcral 
of  the  Union."  it  w(juld  Ijc  necessary 
'•  ke  appropriate  action,  in 
.''•!vif<  .  m'cderation  which  pro- 
file '  -1  e  in  any  of  them;  unless 
'  till-         ed  States  and  fje  after- 

'    -^    '!>    V     .."     The   commissioners 
nd  dealt  with  the  delicate 


••rv 


iKiu'liiij.;  paragraph: 


(  ii,i 


.  h  propriety  address  these  ob- 
'h-  ic  hey  Imve  the  honor  to  repre- 
',  froi.i  I.  otivcs  of  respect,  to  transmit 
«i'"=  :;;  v.ongress  assembled,  and  to  the 


eration  were  to  be  aniendctl  "  in 
government  ailequate  to  the  e 
not  only  to  inform  the  Cor 
accordance  with  the  thirte-    : 
vided  that  no  "  alteration  ,■  • 
such  alteration  be  agreeu  i 
ward  confirmed  by  tiK-   i  .; 
prepared  a  report  to  th  ■      i  -|  e 
congressional  situation    i    'i-     .     , 

Though  your  comm  -Iiik 
servations  and  sentiments  u    n 
sent,  thfv  have  nevertheless      , 
copies  of  this  report  to  the  I  i, 
executive  of  the  other  states' 

Virrinia  at  once  took  action,  agreeing  to  the  convention  to  be  held  at  rongr...i„„j 
Philadelphia  for  the  purposes  specified  in  the  report,  and  appointed  commis-  "''"""' 
sinners  or  delegates  to  meet  wkh  the  delegates  of  the  other  States  to  con- 
sider the  revision  of  the  Articles  of  Confederation.  New  Jersey,  Pennsyl- 
vania. North  Carolina.  Delaware,  and  Georgia  did  likewise;  whereupon  the 
Congress,  seeing  that  the  Convention  was  to  take  place,  and  not  unwilling  to 
make  a  recommcndrtion  which  was  likely  to  be  followed,  as  well  as  to  aid 
in  securing  for  the  general  government  powers  which  it  had  repeatedly  but 
vainly  urged,  gave  its  approval  for  the  call  of  the  convention  in  the  follow- 
ing resolution,  adopted  February  21.  1787: 

\\-hcreas  there  is  provision,  in  the  Articles  of  Con f deration  and  Ter- 
petual  I  nion.  for  making  alterations  therein,  by  the  asset  jf  a  Concre^s  of 
the  L nited  States,  and  of  the  legislatures  of  the  several  s  -s :  and  Vvhcreis 
experience  hath  evinced  that  there  are  defects  in  the  presc.  .  Confederation  ■ 
as  a  nican  to  remedy  which,  several  of  the  states,  and  particularly  the  state  of 
•New  \ork.  I.y  express  instructions  to  their  delegates  in  Congress  Iwve  sue- 
gested  a  convention  for  the  purposes  expressed  in  the  followintr  resolution- 
and  such  convention  appearing  to  be  the  most  probable  mean  of  estabiishine 
m  these  states  a  firm  national  government. — 

Resolved.  That,  in  the  oi.inion  of  Congress,  it  is  expedient  that,  on  the  sec- 
ond -Monday  in  May  next,  a  convention  of  delegates,  who  shall  have  been  ap- 

^lUd.,  p.  118. 
'Ibid. 


\m 


i. 

■    t     l 

m 

i 

I:     U 


til 


IP: 


:v;'-!i 


t'nion  cf 

Sovereign 

States 


If 

11 


58  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

pojtited  by  the  several  states,  be  held  at  Philadelphia,  for  the  sole  and  express 
purpose  of  revising  the  Articles  of  Confederation,  and  reportinr  to  Congress 
and  the  several  legislatures  such  alterations  and  provisions  therein  as  shall, 
when  agreed  to  in  Congress,  and  confirmed  by  the  states,  render  the  federal 
Constitution  adequate  to  the  exigencies  of  government  and  the  preservation  of 
the  Union." '  *^ 

Authorized  by  the  Congress,  there  was  no  reason  why  the  States  should 
hesitate,  and  with  the  exception  of  Rhode  Island  all  of  the  thirteen  States  then 
composing  the  Union  appointed  delegates.  They  did  not  reach  Philadelphia 
on  "  the  second  Monday  in  May  next."  It  was  not  until  the  25th  that  the 
delegates  of  seven  States  arrived.  New  Hampshire  did  not  appoint  its  dele- 
gates until  the  27th  of  June  because  of  a  lack  of  funds  necessary  to  their 
maintenance,  and  the  delegates  appointed  and  accepting  the  appointment  made 
their  appearance  only  late  in  July,  w^°n  the  work  of  the  Convention  was  well 
along,  but  fortunately  in  time  to  share  in  some  of  its  most  important  proceed- 
ings. 

It  may  be  disputed  whether  a  union  of  the  States  existed  in  law,  although 
it  may  have  existed  in  fact,  before  the  Isi  day  of  March,  1781,  when  the 
Articles  of  Confederation  creating  a  perpetual  Union  were  ratified  by  the  last 
of  the  thirteen  States  upon  the  signature  of  the  .\rticles  by  the  delegates  of 
Maryland,  authorized  and  directed  so  to  do  by  that  State.  There  can  be  no 
doubt,  however,  that,  after  that  date  the  thirteen  .Vnierican  States  formed  a 
Confederation  and  remained  confederated  until  the  dissolution  of  the  Con- 
federation by  the  adoption  of  the  Constitution  and  the  organization  of  the 
government  of  the  more  perfect  Union  thereunder  in  1789. 

The  (|uc,sti(in  of  the  relation  of  tiie  States  to  one  another  and  to  the  Con- 
federation established  by  the  Articles  has  Iwen  the  subject  of  no  little  delate. 
"\'ct  there  seems  to  lie  no  reasonable  doubt  on  this  head,  if  the  language  of  the 
Articles  means  what  it  says  and  if  the  decisions  of  the  Supreme  Court  of  the 
United  States  are  entitled  to  res])cct.  No  doubt  the  States  could  have  merged 
their  personality  in  the  I'nion  of  their  creation,  but  there  is  no  doubt  that 
they  (lid  not  do  so;  for.  after  stating  in  the  first  article  that  "  the  stile  of  this 
Confederacy  shall  be  '  the  I'nited  States  of  .\merica,'  "  the  very  next  article, 
and  the  fir>t  in  which  the  relation  of  the  States  is  considered,  provides  that 
"  each  State  retains  its  sovereignty,  freedom,  and  independence,  and  every 
pov.er,  jurisdiction  and  right  which  is  not  by  this  Confederation  expressly 
delegated  to  the  United  States  in  Congress  assembled." 

As  in  the  case  of  Kcspiiblica  v.  Swccrs  ( 1  Dallas,  41),  decided  in  1779,  the 
Supreme  Court  of  Pennsylvania  con>idered  the  States  to  form  a  body  cor- 
porate from  the  moment  of  their  association,  so  in  Xathan  v.  Commonwealth 
of  I'iryinia  (1  Dallas,  77,  note),  decided  in  the  September  term  of  1781, 

>  Elliot,  Dehalcs,  Vol.  i,  p.  120. 


A   CONFEDERATION   OF  SOVEREIGN   STATES 


59 


within  a  few  months  of  the  final  ratification  of  the  Articles  of  Confederation 
on  March  1,  1781.  the  Supreme  Court  of  Pennsylvania  determined  that  the 
States  under  the  Articles  of  Confederation  were  sovereign,  free  and  independ- 
ent States  in  the  sense  of  international  law.  In  the  official  report  of  this  case 
it  is  stated  that 

A  foreign  attachment  was  issued  against  the  Commonwealth  of  Virginia, 
at  the  suit  of  Simon  Natlian;  and  a  quantity  of  cloathing,  imported  from 
France,  belonging  to  that  state,  was  attached  in  Philadelphia.  The  dt-Icgates 
m  Congress  from  \  irginia.  conceiving  this  a  violation  of  the  laws  of  nations, 
applied  to  the  supreme  executive  council  of  Pennsylvania,  by  whom  the 
sheriff  was  ordered  to  give  up  the  goods.  The  counsel  for  the  plaintiff,  find- 
ing that  the  sheriff  suppressed  the  writ,  an."  made  no  return  of  his  proceed- 
ings obtained.  Septemlier  20,  1781,  a  rule  that  the  sheriff  should  return  the 
writ,  unless  cause  was  shewn. 

They  contended  that  the  sheriff  was  a  ministerial  officer:  that  he  could 
not  dispute  the  autlionty  of  the  coun  out  of  which  the  writ  issues,  but  was 
bound  to  execute  and  return  it  at  his  own  peril.  6  Cc.  54.  That  those  cases 
m  England,  where  the  sheriff  was  not  compelled  to  return  writs  issued  against 
ambassadors  or  their  retmue.  depended  upon  the  stat.  7  Ann.,  c.  12  which 
did  not  extend  to  this  state. 

The  Altorncy-Gciicral,  on  the  part  of  the  sheriff,  and  by  direction  of 
t,ri"''hfra'  execi'tivc  council,  shewed  cause,  and  prayed  that  the  rule  might 
be  discharged  He  premised,  that  though  the  several  slates  which  form  our 
federal  republic,  had  by  the  confederation,  ceded  many  of  the  prerogatives  of 
sovereignty  to  the  Ln.ted  Statt-s.  yet  these  voluntary  engagement!  <lid  no 
injure  their  independence  on  each  other;  but  th.it  each  was  a  sovereign  "  with 
every  [wwer.  jurisdiction,  and  right,  not  expressly  given  up  "  He  t'len  laid 
down  two  positions.  First :  that  even.-  kind  of  process,  issued  against  a  sov- 
ereign is  a  viobtion  of  the  laws  of  nations:  and  is  in  itself  null  and  void 
^second :  that  a  sheriff  can  not  be  compelled  to  serve  or  return  a  void  writ. 

After  elaborate  argument  by  tlie  .\ttorney  General  and  counsel  for  plain- 
tiff in  support  of  their  respective  contentions.  "  the  Court."  to  quote  the 
official  report,  "held  the  matter  some  days  under  advisement —  and  at  their 
next  meeting  the  President  delivered  it  as  the  judgment  of  the  court. 

That  the  rule  made  upon  the  sheriff,  to  return  the  writ  issued  asjainst 
the  commonwealth  of  Virginia,  at  the  suit  of  Simon  Xathan.  should  Ik.-  .lis- 
charged."  " 

To  the  same  effect  are  the  opim'ons  of  Chief  Justin-  Marshall  in  the  load- 
ing case  of  Slunjcs  V.  CrowHiiishii-U  (4  Vheaton.  I'JJi,  decided  m  ISP).  m 
which  that  eminent  ji^-ist  >aid: 

It  must  l«'  recollected,  that  j.revious  to  the  formation  of  the  new  constu,,- 
tion.  we  were  divuled  nilo  in.icpetideiit  slates,  united  for  some  iniii.Mses  l.i-t 
in  most  respect-,  -'vereign.  ' 


.\nd  in  the  le;iding  case  of  o/W'.uw  v.  (K/iic-n  (9  Wheaton,  1,  187 
iii  lf<-'4,  (Jhief  Justice  .Marshall  ;,gain  said: 


i 

■■  I  1 


III 


vM 


•lecidcd 


i. 


,?s3^^--i  iv^.'^- rsJSi 


60         THE  un:"ed  states:  a  study  in  international  organization 

As  preliminary  to  the  very  able  discussions  of  the  constitution,  which  we 
have  heard  from  the  bar,  and  as  having  some  influence  on  its  construction, 
reference  has  been  made  to  the  political  situation  of  these  states  anterior  to 
its  formation.  It  has  been  said,  tliat  they  were  sovereign,  were  completely 
independent,  and  were  connected  with  each  other  only  by  a  league.  This  is 
true. 

As  far,  therefore,  as  the  United  States  were  concerned,  they  were  inde- 
pendent from  July  4,  1776;  and  from  March  1,  1781,  they  formed  a  Confed- 
eration under  the  Articles  of  Confederation  and  Perpetual  Union.  As  far 
as  the  outer  world  was  concerned,  their  independence  of  Great  Britain  and 
membership  in  the  society  of  nations  was  recognized  by  treaties  with  France 
of  February  6,  1778,  with  the  Netherland.s  of  Octolier  8,  1782,  with  Sweden 
of  April  3,  1783,  and  with  Great  Britain  itself  of  September  3,  1783.  The 
Declaration  of  Independence  had  ceased  to  be  a  hope  or  a  promise;  it  l;,(d 
become  a  fact,  and  it  was  alilvc  the  task  and  the  test  of  the  Statesmrn  ft  ij 
day  to  sec:irc  that  form  or  jjovemment  which  to  them  and  their  saccessors 
should  seem  must  like!)  to  effect  their  safety  and  happiness. 


IV 

EARLY  BACKGROUNDS  OF  THE  AMERICAN  CONSTI- 
TUTION—TRADING COMPANIES 

'^4^^'JJ»^7.:'^:'^:^^":,-  oo.pan,es  i.  „,..,  ...eeahio  ,o  «,..  English 
and  servelh  to  them  instead  fa  ofm'nv  V  /'  """  ^"  ^'^"=^'  "'"'""'  '"  "'^-  R''tch 
Fra»ns  Kacon,  Jam,-.  ^^■</dml^V^/r!  ^W  ^'::  Mrt;''7'l.(!;.'r''    ""'■  '""'''^  '""'  ^-'f''  "f 

Know  ye  that,  .      .  Bicciiiig. 

in  those  parts  at  their  good  hking-  ^"tfcient   .,nd   tit   persons    for   th.,r  governors 

orhylheirsnffic,en  .leS  nd  floZo.hlm'rH''  "^  "'"*"  ■^'-'^'^  ^'"'"  ''^  the.nsdv.s 
unarrcls  whatscH-ver,  which  are  ,r,,L"  n  ,r  ^^^.l  "T  ""^  '"  '*^'""'  '"  """■  '^"''^  >"  ' 
parts  aforesaid,   fnll  and  spetTv  ,u  "i'e     '  '"  '""'■'■''""  '1'"'"^  ""  "'"""^  'l'^">  ■"  'he 

U..cr«overnn,e,,,o,-,hos,;u.of1he~;^;htll\:rs^^  '"   "^="   "-'-'^   '-   -'>e 

an^;;:!  M;Ki;ur^h;"rs,/r'i;;:i^e::;,tn^r':;!^?i  ;:•,:';•-,  "♦^--  -  ••'-  'x-'-i^ 

aforesaid   governors    „,    t„    U-    ,h,  s^n       r    .L        i  ■^nh^tand.    resist    or   disoheA    the 

afores.,id  Ltutes    ordi„a;,c„   ^nd   c"'s,nm''""   ''"""'"'•   '"   '"'   "'    ""''"•   '"•   ="»    "f   '^^e 


111 


i^5.r::s 'lij' Ki~;£;:r;:  t-H:;;;%irrr,,-iirj:;' r-'t' 


-  H     11 

"^  '■fl 

^^  ifjj 


62 


THE   UNITED  STATES:   A   STUKV    IN    INTERNATIONAL  ORGANIZATION 


of  better  Bovernment."  With  thi.  end  in  view,  the  charter  prescribes  that  the  merchants 
"ma^  freely  and  lawfully  assemble  and  meet  togeth.  r."  when  and  where  ti.rv  plea,e^  o 
elect  goveinors  "in  those  parts  at  the.r  good  liking.'  The  Kovernor,  are  cnpowered  to 
ru"  and  administer  justice  to  all  Ei.Klish  merchants  r,  sortrnK  t.>  tl».se  parts,  to  adjust 
disputes  among  the  English  merchants  themselves,  and  disputes  Inftween  English  ""ff'^li"" 
and  the  merchants  of  the  soil,  to  punish,  to  enforce. ;  and  by  the  common  consent  o  the 
a  ore»id  merchants  our  subjects,  to  make  and  establish  statutes  ordinances  an.  customs 
as  sMI  seem  expedient  in  that  In-halt  for  the  better  g.nernniwnt  of  the  ■'tate  of  the  said 
merchants^r  subjects."  .  .  .  The  nne  and  only  object  of  the  charter  is  better  Koveri  - 
mem  Td  the  wav  in  which  better  government  is  to  l)e  atuined  is  by  granting  seli- 
Ze;nment  The  kinS  knew  well,  and  the  merchants  knew  well,  that,  given  law  an<l 
order  Fngish  trade  would  prosper  without  government  assistance,  regulated  companies 
were  the  Srfy  companies,  regelated  trade  is  what  they  stood  or.  as  oppose.l  ;.  promiscuous 
wire  tne  eariy  ioiiii«"      •,     »  .  „         j    ,(,     merchants    knew    will,   that   anion,^ 

E:'h1hm;n"the  gold  n  r^oad  t'otaw'^n^d  order  is  to  give  them  definite  authority  to  govern 
rhem«l"s  to  choose  their  own  rulers  and  make  their  own  laws.  Kxactly  two  hundred 
yea^  later  in  ^6fl6.  the  amtinuou.  history  nf  the  British  lunpire  tH.y,«ul  the  seas  began 
^'th  ,he  g;ant  of  a  royal  charter  to  the  Virginia  Company;  the  charter  «;hich  vvas  give 
To  tile  tnglish  mcri-hant,  in  the  U.w  Countries  fnr  their  better  government  in  */  might 
lUst  have  bce^^a  model  for  the  founding  of  Knglish  ^"'°',""^  '"  ^J^'^'^-  ^^"'  ^'  ^• 
Lu.as.  Th.-  Bcyimnngs  of  ISn^lish   Overseas  Enterprise,   mi.  /-/>■    n^m^ 

In  good  truth  his  company  was  a  plentiful  nursery,  for  the  forerunner  and  ancestor 
of  all  the  chartered  companies  was  the  fellowship  of  ihe  Merchant  .Vdventurers ;  they 
made  the  nrst  experiments  and  took  the  lirst  risks:  "one  day  still  beini;  a  schoolmaster 
unto  the  other."  they  gradiialh  evolved  the  machine  which  built  up  the  Uritish  Empire. 
(.Sir  C.  /     Lucas.  The  Beginnings  of  English  Overseas  Enlirfrise.  W17.  r    '49.) 

The  Merchant  .'\dventarers  had  a  definite,  continuous,  working  life,  in  <vne  jihase  or 
another,  trom  the  centrn!  vears  .f  the  Middle  .Ages  till  the  begmning  of  ttie  ninct.ent.i 
century.  .  .  Thev  embo<!ied,  to  quote  Cartyle's  words,  the  English  instinct  to  exiiand. 
if  it  be  iwssibK.  some  dd  h.ibit  or  method,  already  found  fruitful,  int..  new  growth  for 
the  new  need  "  Horn  ni  a  guild,  thev  iK-came.  as  a  regulated  conipaiiy.  a  K"'''t  enlarged 
and  expanded  t^i  meet  wider  calls  tlian  those  ■  i  a  particular  trade  in  an  Mnglish  city; 
thev  enibodicti  "the  development  of  national  commerce  along  lines  which  were  fami  lar 
in  municipal  life."  That  continuity,  which  has  Iktii  an  outstanding  feature  of  F.nglisli 
character  and  Hnglisli  histor>',  was  at  once  illustrated  md  up  held  by  the  Merdiant  ,\dven- 
turer.^    ...  ....  1 1        •  u 

The  actual  beginnings  of  the  Overseas  Empire  of  Great  I^ritain  coincide<l  roughly  with 
the  Ih-k  niiings  of  loint-stock  companies,  and  in  the  cnnstruction  of  the  lunpire  joint  stock 
playe'l  a  part  wliicli  can  hardly  he  over-estimated.  (.Sir  C.  P.  Lucas,  The  De.mnnings  of 
Ln];lish   (hrrseas  linlerprise .  WI7.  Pf-  141-143.'! 

This  thiril  charter  of  \'irpinia  thus  erected  the  London  Trading  Company  into  a  Ixidy- 
poliiic.  ileniiK-ratic  in  its  organi/^ation.  with  jiouers  vested  iii  a  chief  exi-cutive.  a  council, 
and  an  as^euiMy.  having  full  authority  to  legislate  and  to  establish  a  form  of  government 
for  the  ohmv  confided  to  its  care. 

The  charter  just  descrilu'd  jjosscssed  all  the  essential  elenieuis  ,,f  .  written  constitu- 
tion. It  establjshcil  a  frame  .'f  government  and  distributed  executive,  jmhcial.  and  legis- 
latue  functions.  It  w.i-,,  however,  merely  tlie  constitution  of  an  l-.nglish  tr  iding  company. 
(  William  L  .  Murcw  The  Ccncus  of  a  W'riUcn  Ci>n.<lili:!i,'ii,  .Innals  <  '  the  .Imcruan  .IcaJcmy 
vf  I'otittcat  and  iociu/  iViViicc.  /AV'>-V'.  i'ol.  I.  p.  fli.) 

.\<  we  trace  the  various  jiolitical  institutions  of  the  .American  colonies  Kick  to  a  common 
source  we  tin^l  that  they  were  in  the  first  instance  derived  from  cert:iiu  iiowers  delegated 
by  tlic  Ijiglish  crown  and  emh.idicd  in  cliarters  granted  to  trading  companies  or  pro- 
prietors. The  first  colotnes,  whether  they  were  established  by  the  authority  of  their 
superiors,  or  whether  they  were  orvani/ed  hy  their  own  iud-pendeiit  ifforis.  acijuired  a 
form  similar  to  that  01  tlie  trading  compan,\-.  In  its  most  priuiitivc  an!  typical  form  tlic 
colonial  gowrnuieni,  lilie  that  oi  tiie  company,  consisted  of  a  governor,  a  deputy-governor. 
a  council  of  as,,istai:ts,  and  a  general  as^ini)>Iy.  In  this  siniiile  iv>!itKal  Isxly  there  was  at 
first  little  ditiereiitiatioii  oi  niiictioiis.  The  most  important  business,  whether  legisla'ivc. 
judicial  or  adinmistratne.  was  p.  r formed  hv  the  wlmle  corporate  hodv,  a^seii'l.led  in  a 
"General  Court."  ^la•le^^  of  minor  iin|iort.uice  gradually  caiue  to  Ik-  leil  to  the  i.fiicial 
part  of  the  body,  th.it  is.  the  governor.  t''e  deivnty-goveriior.  auil_  the  asM^t.-»nts.  sitting  to- 
gether under  the  n.ime  of  a  "Court  of  .\,>istant-,"  or  "Council."     Taking  this  simple  and 


EARLY   BACKGROUNDS  OF  THE  AMERICAN   CONSTITCnON 


63 


?^  .^^^.^7.^°  "'"'  "'K*"'""  •».  »  »«««'n8  point,  it  will  not  be  difficult  for  us  to 
l^H  i^f.rr"'  "'  ,''^^"  ''T"'*^-''  '"»«""«ion5  which  characterized  the  later  colonieV 
P?,.<  c^-.^  ,  ""o  .""'^r'*  !"  ']"."",'  State  constitution,.  (H'ilUam  C.  Morey.  Thi 
S  1^4  P,    1  p°%4^  "^        American  Academy  of  Political  and  Social  Science. 

^,J^  illustration*  are.  doubtless,  sufficient  to  show  that  the  form  of  BOTernment  which 
prevailed  in  the  soiuhem  colonies  was  modelled  after  that  of  the  parent  cSlonv  of  Virginfa 
wh,ch  m  turn,  wa,  denved  from  the  form  of  government  estLlished  by  ^royal  charter' 
for  the  London  1  rading  Company;  and  also  that  the  constitutions  of  the  s6uthern  colonel 
uiTon  "°'  ■"  ■■"       °    ""'  ''""°'"'  ••"'  *'  '*"  ^'°^""  °f  sUtutor^  C" 

As  we  turn  to  New  England  we  shall  see  that  the  typical  government  of  the  \ortherti 
colonies  wa.  ..ot  patterned  after  that  of  a  trading  com^ny.     ft  was  itself  the  govemmm 

H  he.ra1;o;;rZr;^;v  '"-"'V'^^r  "'  '"^/"ir  '^c  comr..^  sent  out  the  colony'ard  e™S* 
in^     ,t.lh.    .  '".""^  ^^^"^^  "f  Massachusetts,  the  company  became  the  colony 

and  brought  ,t*  government  witH  it.  iHilliam  C.  Morey  The  GeiU's^soTrilrillcnConl 
sntunpn.  An^  of  ihe  American  Academy  of  Political  aV^Sc^rinVn"!  "«[i^"  "f^^  / 


1) 


ni 
tj 

II 


"M 


V 


I  =*' 


zM 


CHAPTER  IV 

EARLY   BACKGROUNDS   OF   THE   AMERICAN    CONSTITUTION THE  TRADING 

COMPANIES 


Color  i 

Ch»i    -r" 


A.  DISTINGUISHED  Statesman  has  observed  that  "  as  the  British  Constitu- 
tion is  the  most  subtile  organism  which  has  proceeded  from  .  .  .  progressive 
history,  so  the  American  Constitution  is  .  .  .  the  most  wonderful  work  ever 
struck  off  at  a  given  time  by  the  brain  and  purpose  of  man."  '     With  this 
commendation  of  the  Constitution  the  layman  is  likely  to  agree,  but  the  his- 
torian would  dissent,  unless  Mr.  Gladstone's  statement,  for  it  was  he  who 
made  the  remark,  is  to  be  construed  in  such  a  way  that  the  American  like 
1  e  British  constitution  lie  looked  upon  as  the  most  subtile  organism  which 
s  proceeded  from  progressive  histor>'.     For  the  fact  is  that,  with  the  Saxon 
inest  of  England,  progressive  history  began  in  England,  and  with  the 
-nt  of  the  first  English  settler  to  America,  progressive  history  began  in 
erica,  and  the  culminations  were  the  unwritten  constitution  of  Great  Brit- 
on the  one  hand  and  the  written  Constitution  of  the  United  States  on  the 
ner.     If,  however,  the  constitution  of  Great  Britain  were  that  of  America, 
ir      luld  n.>t  have  required  the  calling  of  a  convention  to  reduce  it  to  writing, 
althc    zh  it  was  undoubtedly  in  the  minds  of  those  who  framed  the  Amer- 
1  inst      nent  of  government,  it  was  not  the  British  constitution  of  1787 
111      <h<-        tish  constitution  as  expressed  in  colonial  charters  adjusted  to 
ti,        ,,  u    ns  and  circumstances  of  the  new  environment  and  incorporated 
ni  i;     (.nn>titutions  of  the  several  independent  states  of  America  ( to  (juote  the 
title        a  ( "onp:rcssional  publication  of  1781  ■),  which  formed  the  firm  and 
sure  foundation  upon  which  the  new  stntcture  was  reared. 

It  is  common  knowledge  that  the  territories  which  formed  the  thirteen 
British  colonies,  and  ultimately  the  thirteen  oripinal  States,  were  settled  under 
charter^  granted  bv  the  ir.wn;  that  the  earlie>t  of  thc-e  charters,  to  the  l-on- 
don  .uid  .\i\v  l.n^land  Companies,  were  in  fomi  and  content  similar  to,  if 
not  uienticai  with  the  charters  ^ranic.l  to  the  1  rading  Companies  of  England, 
of  whirh  the  E.i-t  India  C.nnpai'.y  i-  the  in.^t  faminis  and  typical  example: 

Wilb^m  E.  '.la.lstonc.  <;/,-.i.r.«.j.!  -•/  /'J.>(    r,-,».9    1H4.V7H.  Vol    i,  I).  212.  . 

•;,,•  ,  ..ii.t/i;u/'  "!       /  tiu-   ■■      ■al  !,;.<./•.  m,/,m;  .(f.i(,-,«  ,■/     tmerua.   the  Pfilaralton  of  m 
Jef.ndcnce;   Ih,-     t'l-       i     /  <nn,-di-rntwn  ''.MiYrii   ihi'  said  sUtes 
M  ,<t  Chriitidn    l/.;,iij,v  tnd  th 
fhila.klplua,   1/»*1. 


C'Hir.-ii  Stulis  (if  .imerii  j. 


the  treatii-s  hetu'ren  His 
rublislieJ  by  order  of  Congress. 


6* 


EAM.Y  BACKGROUNDS  OF  THE  AMERICAN   CONSTITUTION  55 

that  the  form  of  government  developed  in  Virginia  under  its  charter  was 
followed  by  the  colonies  south  of  Mason  and  Dixons  line;  and  that  the  form 
of  government  developed  in  Massachusetts  under  its  charter,  was  followed 
by  the  colonies  to  the  north  of  that  line.  It  is  important  to  dwell  upon  these 
facts,  because  they  show  how  naturally  the  framers  of  the  American  Con- 
stitution  were  consciously  or  unconsciously  influenced  by  generations  of  coIo- 
nial  experience  and  practice  to  authorize  the  jiulicial  power  of  the  Cnited 
States  to  declare  unconstitutional  those  acts  of  Congress  and  of  the  States 
forming  the  American  union  inconsistent  with  that  charter  which  we  call  the 
Constitution,  just  as  the  courts  of  the  mother-countrv  had  from  time  to  time 
declared  null  and  void  legislation  on  the  part  of  the  colonies  in  excess  of  the 
grants  contained  in  the  charters  creating  these  bodies  politic. 

In  the  first  volume  of  his  history  of  Massachusetts,  published  in  1764. 
Thomas  Hutchinson,  then  Chief  Justice  and  Lieutenant  Governor,  and  soon 
to  l)ecome  the  last  Royal  Governor  of  that  Commonwealth,  said,  in  speaking 
of  the  original  charter  of  the  colony  granted  on  March  4,  1628  : 

It  is  evident  from  the  ch.irter  that  the  original  design  of  it  was  to  con- 
stitute a  coqwration  in  England,  like  to  that  of  the  East-India  and  other  ereat 
companies  with  powers  to  settle  plantations  within  the  limits  of  the  terrilorv 
under  such  forms  of  government  and  magistracy  as  should  be  fit  and  neces- 
Seiry. 

More  recently  Mr.  George  Cawston,  a  specialist  in  such  matters  and  an  in- 
corporator ot  the  British  South  African  Company,  has  said: 

Most  of  the  colonial  pos.sessions  of  this  Empire  were  in  the  first  place 
setted  through  the  agency  of  Chartered  Companies,  and  that  our  foreS 
trade  and  commerce  principally  originated  in  the  same  manner. 

In  his  interesting  and  instructive  volume  entitled  The  Early  Chartered  Com- 
AM/.'.f,  Mr.  Cawston  <iuotes  with  appnnal  in  the  preface'that  "  individuals 
cannot  extend  society  to  distant  places  without  farming  a  compact  amongst 
themselves,  and  obtaining  some  guarantee  for  its  being  obser\-cd."  to  which  he 
adds  upon  his  own  authority: 

All  the  old  and  most  successful  British  colonies  in  America,  \-ireinia 
Mass.-.clui>etts.  (.unnccfcut  Khode  Island,  IVnnsvlv.mia,  Marvland  a  ,d 
GeorgK.  which  formed  the  basis  of  that  most  wonderful  conntrv,-the  Iniic, 
States  o  .America,  were  founded  l,y  individuals  whose  public  spiVit.  prudence 
and  resolution  were  not  otherwise  assisted  by  the  ( lovernnient  of  their  cou,  -" 
tr\  he  charter  from  the  Crown  simply  erected  each  of  those  bodie.  <.f 
HKhviduals  into  a  cor,orat,on.  with  authority  re.iuired  for  p  -coniplish  n\.  o 
use^tue  words  of  several  of  these  charters,  ^he'.r  generous  an  I 'iJoblctur- 

vii-viii  *-**''""  ^"'^  '^    "•  ^'■^"'■•-  Tl"'  >-'^-h  lluiricred  ComMnus,  1896.   Preface,  pp. 


Genesit 

of  Autbority 

of  Supreme 

Court  in 

Que»tiont 

of  Cotiatitu- 

tionality 


'  H 


^^  i 


i  i 


*•■ 


i  m'- 


66 


THE   UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 


Two 

Kindiof 

Charter! 


Corpora- 
lions 


In  Giaptcr  X  of  the  volume  to  which  reference  has  been  made,  a  careful 
and  readable  account  is  given  of  "  The  \'irginia  and  New  England  Com- 
panies and  Provincial  Charters,"  in  the  course  of  which  attention  is  directed 
to  a  distinction  which  should  have  been  made  by  the  Crown  on  its  own  mo- 
tion, but  which  was  ultimately  wrung  from  the  mother  country  as  the  result 
of  a  bitter  experience : 

And  here  a  distinction  should  be  drawn  between  charters  granted  to  Eng- 
lish trading  companies,  which  on  the  whole  were  injurious,  and  charters 
granted  to  the  settlers  themselves,  which  were  often  beneficial  and  highly 
prized  as  legal  instruments  affording  protection  against  the  oppressive  or  un- 
constitutional measures  of  the  Crown  and  the  provincial  Governors.  In  gen- 
eral it  may  be  said  that  charters  of  this  second  category  should  alone  have 
Ijecn  granted,  or  at  least  the  others  should  ha%'e  been  withdrawn  as  soon  as 
the  colonists  felt  themselves  strong  enough  for  self-government.  Indeed, 
there  was  a  natural  tendency  in  this  direction,  and  the  control  of  the  trading 
associations  was  ultimately  everywhere  replaced  by  representative  assemblies. 

But  the  change  was  not  always  effected  without  considerable  friction, 
which  was  due  to  the  fact  that  the  Home  Government  was  slow  to  recognize 
the  true  relations  that  ought  to  have  prevailed  from  the  first  between  the  col- 
onies and  the  mother  country.  Those  colonies  were,  and  should  have  been 
regarded  as,  mere  extensions  of  England  beyond  the  seas,  as  Professor  Seelcy 
has  clearly  shown  in  his  '  Expansion  of  England,'  and  had  this  patent  fact 
been  grasped  by  the  ruling  classes  in  the  eighteenth  century,  there  need,  per- 
haps, never  have  been  an  American  Revolution.' 

The  settlers  in  the  new  world  were  therefore  bound  to  be  familiar  with 
corporations,  the  characteristics  of  which  are  stated  by  Mr.  Stewart  Kyd,  a 
contcinporary  of  the  framers  of  the  Constitution,  in  his  treatise  on  the  law  of 
corih)rations,  published  in  17'J3-4,  shortly  after  the  Constitution  of  the 
Initc.l  .States  went  into  effect.  Mr.  Kyd,  dating  the  second  of  the  two  vol- 
umes from  tlic  Tower,  to  which  he  had  been  committed  on  a  charge  of  high 
trca^..n  Ktcause  of  his  lilK-ral  views  —  more  unfashionable  then  than  they 
arv  tnjay  —  thus  speaks  of  corporations: 

.\iiiong  the  institutions  of  almost  all  the  states  of  modern  Europe,  but 
among  none  more  than  those  of  E-igland,  many  of  these  collective  l)odics  of 
men,  under  the  names  of  bodies  politic,  bodies  corporate,  or  cori)Orations, 
make  a  cons])icuous  figure. 

At  their  first  introduction,  they  were  little  more  than  an  improvement  on 
the  communities  which  had  grown  up  imperceptibly,  withon'.  any  positive 
institution :  and,  for  a  considerable  period,  the  shade  wliich  separalctl  the 
one  from  the  other,  was  of  a  touch  so  delicate  as  to  require  the  most  minute 
attention,  and  the  most  (li>ciTning  eye.  to  distinguish. 

One  essential  characteristic  of  a  corporation  is  an  indefinite  duration,  by 
a  continued  accession  of  new  memlwrs  to  supply  tiie  place  of  those  who  are 
removed  by  <ieatli.  or  other  means,  which,  in  the  language  of  the  law,  is  called 
perpetual  succession : 


'  Cawston  and   Kcaiie.   T'l,-  Larly 


'i,r,d  Comfanii-s.  pp.   198-9. 


Ew*«ii:!3t- 


il 


EARLY   BACKGROUNDS  OF   THE  AMERICAN   CONSTITUTION 


67 


It  is  another  characteristic  of  a  corporation,  that  it  is  capable  in  its  col- 
lective capacity  of  possessing  property,  and  tran^mittine  it  in  perpetual  suc- 
cession; ... 

A  third  characteristic  of  a  corporation  is.  that  the  members  of  which  it  is 
composed,  arc  subject  to  common  burthens ;  .  .  . 

Anotlicr  characteristic  of  a  corpor.-vtion  is,  that  it  may  sue  and  be  sued  in 
Its  collective  capacity ;  .  .  . 

And  after  stating  what  he  calls  the  essentials,  he  continues: 

A  cf)Rii)R ATfoN  then,  or  a  body  politir.  or  body  incorporate,  is  a  col- 
lection of  many  individuals,  united  into  one  bodv,  under  a  sfccial  dcnomina- 
twn.  having  pcrpciu.il  succession  under  .nn  arlificml  form,  and  vested  by  the 
pohcv  of  the  law.  with  the  capacity  of  acting,  in  several  respects,  as  an  in- 
rfi7id«<i/.  particularly  of  taking  and  granting  property,  of  contracting  obliga- 
tions, and  of  suing  and  being  sued,  of  enjoying  privileges  and  immunities  in 
common,  and  of  exercising  a  variety  of  political  rights,  more  or  less  extensive 
according  to  the  design  of  its  institution,  or  the  powers  conferred  upon  it' 
either  at  the  time  of  its  creation,  or  at  any  subsequent  period  of  its  exist- 
ence.' 

The  views  which  Mr.  Kyd  expressed  and  which  were  no  doubt  shared  by 
American  lawyers  of  his  day  were,  it  is  believed,  also  the  views  of  the  early 
settlers :  and  these  views  were  based  upon  reported  cases  decided  by  English 
Judges  during  the  period  of  American  colonization.  Thus,  Sir  Henry  Hobart, 
"  a  most  learned,  prudent,  grave  and  religious  Judge,"  Attorney  General  from 
1606-13,  when  the  early  .American  charters  were  grantefl.  anil  Chief  Justice 
of  the  Court  of  Common  Pleas  from  the  latter  date  to  his  death  in  1625,  said 
in  the  case  of  Xorris  v.  Stops  ( Hobart,  211).  decided  in  1617 : 

Now  I  am  of  opinion,  that  though  power  to  make  laws,  is  given  by  spe-  By-Uw, 
cia  clause  in  all  incorporations,  yet  it  is  needless ;  for  I  hold  it  to  be  included 
by  law.  in  the  very  act  of  incorporating,  as  is  also  the  power  to  sue.  to  pur- 
chase, and  the  like.  For.  as  reason  is  given  to  the  natural  body  for  the  gov- 
erning of  it.  so  the  body  corporate  must  have  laws  as  a  politick  reason  to 
govern  it  but  those  laws  must  ever  be  subject  to  the  general  law  of  the  realm 
as  sulwrdinate  to  it.  And  therefore  though  there  be  no  proviso  for  that 
purpose,  the  law  supplies  it.  And  if  the  King  in  his  letters  patents  of  incor- 
poration do  make  ordinances  himself,  as  here  it  was  (as  aforesaid)  yet  thev 
are  also  subject  to  the  same  rule  of  law.  ' 

In  his  treatise  on  the  law  of  corporations  Mr.  Kyd  laid  it  down  that  "  not  only 
lii  Ine-laws  must  l)e  reasonable  and  consi^tent  with  the  general  principles  of 
the  law  i.t  the  land  "  tor  which  Lord  Hobart's  authority  is  sufficient,  but  also 
•  their  reasoiiableiuss  and  legality  must  be  determined  bv  the  Judges  in  the 
Supciur  Court.,  uhen  they  are  properly  before  them  ";  for  which  statement 
the  Icarne.l  author  invoked  the  authority  of  the  Master  and  Coinpanv  of 
l'n,iiii-z.vrk-Knitl,,s  v.  (,>.■.«  (1  Lord  Raymond,  114).  decided  in  1093.  in 
\\hich  it  was  said  by  ihc  JusIrc  that  "  members  of  corporations  are  not  bound 
'  Stc«-ri  Kyd,  .1  Tn-aliti-  on  n.  /,,;;.•  ../  Cortoralions,  179j,  Vol.  i,  pp.  2.  J-4,  7,  10,  13. 


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68 


THE  UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


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to  perform  by-laws  unless  they  are  reasonable,  and  the  reasonableness  of  them 
is  examinable  by  the  Juilges." 

Finally,  for  present  purposes,  another  quotation  may  be  made  from  Kyd, 
as  it  i*  material  to  the  subject  in  hand.     Thus  he  says: 

When  the  corporate  body  has  a  jurisdiction  over  certain  limits,  a  bye-law 
made  by  them  for  the  public  |;ood.  and  whose  object  is  general  without  being 
limited  lo  people  of  any  particular  description,  binds  every  body  coming  within 
the  limits  of  the  jurisdiction,  whether  strangers  or  members  of  the  corporate 
IxMly  I  Brownl.  and  Goulds,  179] ;  for  every  man,  says  Holt,  who  comes  within 
the  limits  of  the  local  jurisdiction  of  a  corporation,  must  take  notice  of  their 
bye-laws  at  his  peril  [Per  HoU,  Skin.  JS].' 

The  charter  granted  territory  within  which  the  trading  companies  should 
operate.  It  incorporated  certain  persons,  making  of  them  and  their  suc- 
cessors a  body  politic,  providing  for  a  governor  or  treasurer,  whom  we  today 
would  call  a  president  or  chairman;  for  a  general  court,  council,  or  assistants, 
whom  we  today  would  call  a  board  of  directors ;  and  a  more  numerous  Ixxly 
of  persons  declared  to  be  "  free  of  the  company,"  whom  we  would  today  call 
stockholders  in  a  company  engaged  in  a  common  venture  upon  a  joint  capital, 
but  who  would  be  tradesmen  in  a  trading  mmpany,  where  each  member  acted 
individually,  not  jointly. 

The  nature  of  this  process,  its  development  and  its  consequences  are  thus 
stated  by  Messrs.  Cawston  and  Keane  in  their  work  on  The  Early  Chartered 
Companies: 

The  trading  associations  that  were  now  springing  up  and  clamouring  for 
the  aegis  of  '  the  most  high,  mightie  and  magnificent  Empresse  l!li7.al)eth ' 
were  constituted  on  two  distinct  principles.  First  in  the  natural  and  actual 
order  came  the  so-called  Regulated  Companies,  which  were  suitable  to  the 
first  efforts  of  the  nation  to  acquire  a  share  of  the  world's  trade,  but  destined 
eventually  to  l)e  superseded  by  the  far  more  powerful  and  efficient  Joint- 
Stock  Companies.  For  a  long  time  all  belonged  to  the  first  category,  and  even 
so  late  as  the  end  of  the  seventeenth  century  there  existed  in  England  only 
three  founded  on  the  joint-stock  principle,  although  these  three  —  the  Ecut 
India,  the  Royal  African,  and  the  Hudson  Bay — were  perhaps  more  im- 
portant than  all  the  rest  put  together. 

In  the  '  regulated  '  companies,  at  that  time  chiefly  represented  by  the  Rus- 
sia, the  Turkey,  and  the  Eastland,  every  member  or  '  freeman '  traded 
solely  on  his  own  account,  subject  only  to  the  '  regidations '  of  the  associa- 
tion. In  fact,  they  may  be  regarded  as  growing  out  of  the  trade  guilds,  modi- 
fied to  meet  the  requirements  of  their  more  enlarged  sphere  of  action.  In  the 
guilds  each  menilier  purchased  a  license  to  ply  his  trade  in  his  own  district  at 
his  personal  risk,  the  guild  itself  being  irresponsible  for  his  liabilities  in  case 
of  failure.  On  the  other  hand,  he  enjoyed  all  the  advantages  of  membership 
in  an  incorporateil  trade,  which  could  not  be  exercised  by  outsiders,  even 
though  residents  in  the  district.  In  tlie  same  way  no  subject  of  the  Crown 
could  trade  in  any  foreign  '  district '  where  a  regulated  company  was  estab- 
lishefl  without  first  acquiring  membership  by  the  (layment  of  a  fee.' 

'  Ky<l,  A  Treatise  nn  the  Law  of  Cnrpnratinfis.  Vol.  ii,  p.  104. 
•  Cawston   and    Kraiie,  Early   Chartered  Companies,   \if.  9-10. 


EAtLY   BACKGROUNDS  OP  THE    AMEIICAN   CONSTITUTION 


69 


It  is  thus  seen  that  in  the  very  elements  of  their  constitution  the  regu- 
lated companies  were  merely  a  dc\  lopment  of  the  local  guilds  adapted  for 
trading  purposes  beyond  the  seas.  The  reasons  which  caused  the  scales  to  tip 
on  the  side  of  the  joint-stock  companies  are  thus  slated  by  the  same  Learned 
authors : 

Then  came  the  time  when,  with  the  growth  of  wealth  and  experience,  these 
pioneer  traders  in  foreign  lands  acquireti  a  dcejier  consciousness  of  their  latent 
powers,  a  greater  sense  of  their  higher  destinies,  and  esjMrcially  that  mutual 
confidence  in  each  other  which  was  ncrdi-d  for  the  adoption  of  the  joint-stock 
principle  As  in  the  regulated  associations  each  mcnitwr  retained  his  per- 
sonal independence,  and  mainly  acted  on  his  own  account  — '  traded  on  his 
own  bottom,"  as  was  the  phrase  —  so.in  the  '  joint '  concerns  the  individual 
was  largely  merged  in  the  corporate  body,  all  working  together  primarily  for 
the  common  good  rather  than  for  their  direct  personal  advantage.  . 

It  was  by  the  general  adoption  of  this  principle  that  the  great  chartered 
companies  acquired  their  enormous  expansion,  and  in  some  memorable  in- 
stances were  by  the  force  of  circumstances  gradually  transformed  from  mere 
commercial  associations  of  Adventurers  into  powerful  political  organizations.' 

On  December  31,  1600.  Queen  Elizabeth  granted  to  George,  Earl  of  Cum- 
berland, and  to  two  hundred  fifteen  Knights.  Aldermen,  and  Merchants  a 
charter  whose  terms  are  thus  stated  in  Anderson's  Oriyin  of  Commerce: 

That,  at  their  own  costs  and  charges,—  they  might  set  forth  one  or  more 
voyages  to  the  East  Indians,  in  the  country  and  parts  of  Asia  and  Africa, 
and  to  the  islands  thereabouts.—  divers  of  which  countries,  islands.  &c.  have 
long  sithence  been  discovered  by  others  of  our  subjects;— to  be  one  body 
politic  and  corporate,  by  the  name  of.  The  Governor  and  Compan\  of  Mer- 
chants of  London  trading  to  the  East  Indies;  —  to  have  succession ; to  pur- 
chase lands  (without  limitation;)  — to  have  one  Governor,  and  twenty- Lur 
persons,  to  be  elected  annually,  who  shall  be  called  Committ.^es,  jointly  to 
have  the  direction  of  the  voyages,  the  provision  of  the  shipping  and  mer- 
chandize, also  the  sale  of  the  merchandize,  and  the  management  of  all  other 
thmgs  belonging  to  the  said  Company  — Sir  Thomas  Smith,  Aldtrman  of 
London,  was  to  be  the  first  Governor,  and  a  Deputy-Governor  to  be  elected  in 
a  General  Court ;  both  the  Governors  and  all  the  Committees  to  take  'he  oath 
of  fidelity.—  As  also,  every  member  shall  take  an  oath,  before  being  admitted 
to  traffic  as  a  freeman  of  this  Company.— The  Company  .  .  .  may 
freely  and  solely  trade,  by  such  ways  and  passages  as  are  already  found  out! 
or  which  shall  hereafter  be  discovered  .  .  .  beyond  the  cape  of  Rona  «^ner- 
anza  to  the  Streights  of  Magellan,  where  any  traffic  of  merchandize  may  be 
used  to  and  from  every  of  them,  in  such  manner  as  shall,  from  time  to  time 
be  limited  and  agreed  on  at  any  public  assembly  or  general  court  of  the  Com- 
pany; any  statute,  usage,  diversity  of  religion  or  faith,  or  any  matter  to  the 
contrary  notwithstanding;  so  as  it  be  not  to  any  country  already  possessed 
by  any  Christian  potentate  in  amity  with  her  Majesty,  who  shall  declare  the 
same  to  be  against  his  or  their  good  liking.—  Either  the  Governor  or  Deputy 
Governor  must  always  be  one  in  general  assemblies,  when  thev  may  make 
all  reasonable  laws,  constitutions,  &c.  agreeable  to  the  laws  of  England,  for 

» Cawston  and  Kcanc.  Early  Chottered  Companies,  pp.  11-12,  13. 


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70  THE   UNITED  STATES:  A  STUDY   IN    INTERNATIONAL  ORGANIZATION 

their  good  government,  hy  plurality  of  voices,  and  may  punish,  by  fines  and 
imprisonment,  the  offenders  against  their  laws  .  .  .  None  of  the  Queen's 
subjects,  but  the  Company,  their  servants,  or  assigns,  shall  resort  to  India, 
without  being  Iicen  ed  by  the  Company,  upon  pain  of  forfeiting  ships  and 
cargoes  with  impruonment,  till  the  offenders  give  one  thousand  pounds  bond 
to  the  Company,  not  to  trade  thither  again.—  Nevertheless,  for  the  encour- 
agement of  merchant-strangers  and  others  to  bring  in  commodities  into  the 
realm  the  Queen  gives  power  to  the  Company  to  grant  licenses  to  trade  to  the 
tast  indies ;  and  she  promises  not  to  grant  leave  to  any  others  to  trade  thither 
during  the  Company's  term,  without  their  consent.  The  majority  of  any 
general  meeting  of  the  Company  may  admit  apprentices,  servants,  factors. 
&c.  to  the  fellowship  or  freedom  of  the  said  Company.  .  .  .» 

Under  this  charter,  the  East  India  Company  was  formed  which,  after 
many  vicissitudes,  became  in  1876,  the  Empire  of  India. 

In  other  words  the  Company  consisted  of  a  governor,  a  deputy  governor 
and  a  committee  or  council  of  twenty-four  persons.  The  governor  (the  first 
being  named  in  the  charter)  and  all  other  officers  were  to  be  chosen  in  a 
general  court  or  assembly  of  the  whole  company;  and  every  member,  upon 
admission,  was  required  under  oath  "  to  traffic  as  a  freeman  of  the  Company." 
The  general  assembly,  consisting  of  the  governor,  the  council,  and  the  mem- 
bers of  the  corporation  sitting  as  a  body,  was  presided  over  by  the  governor 
or  deputy  governor,  and  the  assembly  was  authorized  "  to  make  ail  reason- 
able laws,  constitutions,  etc..  agreeable  to  the  laws  of  England  for  their  good 
Government  by  a  plurality  of  voices  ";  and  also  "  to  punish  by  fines  and  im- 
prisonment the  offenders  against  these  laws." 

It  is  to  be  observed,  in  the  first  place,  that  this  charter  for  the  Asiatic  trade 
was  granted  before  an  English  colony  was  permain-ntly  planted  on  the  main- 
land of  America ;  and,  in  the  second  place,  that  the  company  was  a  lx)dy  politic 
and  corporate,  possessed  of  legislative,  executive  and  judicial  functions,  al- 
though they  are  not  stated  separately  and  in  detail.  Upon  the  death  of  Queen 
Elizabeth  in  1603.  that  great  monarch  was  succeeded  by  James  I  of  England 
and  VI  of  Scotland,  who  granied  his  first  charter  of  Virginia  in  1606,  six 
years  after  that  of  his  predecessor  to  the  East  India  Company,  to  the  vast  tract 
of  land  named  in  1-  nor  of  thf.  \'irgin  Queen,  and  "  this  charter,  with  its 
subsequent  modificauuns,"  to  quote  Mr.  Morey's  illuminating  paper  on  The 
Genesis  of  a  Written  Constitution,  "  may  be  said  to  form  the  beginning  of 
the  constitutional  history  of  the  United  States."  * 

This  charter,  drawn  in  first  instance  by  Sir  John  Popham,  Chief  Justice 
of  tiie  King's  Bench,  and  in  final  form  by  Sir  Edward  Coke,  then  Attorney 
General,  and  Sir  James  Doderidge,  Solicitor  General,  divided,  as  is  well 
known,  the  Xorth  American  coast  into  two  parts,  assigning  the  southern  por- 

*  Adam  Anderson,  Historical  and  Chronological  Deduction  of  the  Origin  of  Commerce. 
Coombe  ed.,  1790,  Vol.  ii,  pp.  261-2. 

^AnnaU  of  the  AmericM  Academy  of  Political  and  Social  Science,  1891,  Vol.  i,  p.  S37. 


EARLY  BACKGROUNDS  OF  THE  AMERICAN   CONSTITUTION 


71 


tion,  between  the  34th  and  41st  degrees  of  latitude  to  the  London  Company, 
and  the  northern  portion,  between  the  38th  and  45th  degrees,  to  the  Plymouth 
Company.  Each  company  was  to  have  a  council  of  thirteen  members  resid- 
ing therein,  to  be  appointed  and  removed  by  the  Crown.  For  these  two  com- 
panies there  was  to  be  appointed  in  England  a  council  of  Virginia,  consisting 
of  thirteen  persons,  to  be  appointed  by  the  Crown,  and  to  pass  upon  and  to 
control  the  actions  of  the  colonies  subject  to  the  instructions  of  the  Crown. 

The  colonists,  whether  born  in  England  or  in  the  plantations,  were  spe- 
cifically endowed  with  "  all  Liberties,  Franchises  and  Immunities  within  any 
of  our  other  Dominions,  to  all  Intents  and  Purposes,  as  if  the"  had  been 
abiding  and  born,  within  this  our  realm  of  England,  or  any  other "cf  our  said 
Domi"'Ti<: "  ' 


:i! 


inuons. 


The  two  colonies  overlapped.  It  was  later  provided  in  the  charter  that 
there  should  be  a  space  of  100  miles  between  the  colonies  planted  in  accord- 
ance with  the  charter.  The  north  and  the  south  were  hus  to  be  separated 
geographically,  as  they  have  been  historically.  The  southern  colonies  have, 
as  a  matter  of  fact,  been  modeled  upon  the  charter  and  the  institutions  of 
Virginia.  The  northern  colonies  have  been  modeled  upon  the  charter  of  New 
England  and  its  institutions.  In  their  broad  lines  the  development  of  the  two 
sections  has  been  similar,  although  not  identical. 

It  is  also  to  be  noted  that  this  first  charter  of  \'irginia  in  1606  is  less  liberal 
than  that  of  the  East  Intlia  Company. —  because  James  I  was  more  of  a  be- 
liever in  divine  right  and  less  of  a  statesman  than  Elizal)eth,—  in  that  it  does 
not  contain  a  grant  of  legislative  power,  and  subjected  the  council  in  the 
colony  and  the  council  in  England  to  the  royal  pleasure,  as  expressed  in  the 
King's  instructions. 

The  settlements  under  this  charter  did  not  thrive.  It  was  an  experiment  a  Second 
wiiicli.  within  less  than  three  years,  had  proved  defective.  Larger  powers 
and  more  specific  privileges  were  requisite.  The  result  therefore  was  a  second 
charter,  probably  drawn  in  first  instance  by  Sir  Edward  Sandys,  and  in  final 
form  by  Sir  Henry  Hobart,  Attorney,  and  Sir  Francis  Bacon,  Solicitor  Gen- 
eral. Under  this  second  charter  the  company  or  association  is  created  a  Iwdy 
politic,  to  be  known,  called  and  incorporated  by  the  name  of  "  The  Treasurer 
and  Company  of  Adventurers  and  Planters  of  the  City  of  London,  for  the  first 
Colony  in  Virginia."  The  council  and  treasurer,  or  any  of  them,  should  in 
the  future  be  nominated  and  chosen  "  out  of  the  Company  of  the  said  Ad- 
venturers, by  the  \'oice  of  the  greater  part  of  the  said  Company  and  .\dven- 
turers,  in  their  Assembly  for  that  Purpose."  The  couni-il.  under  the  presi- 
dency of  its  treasurer  or  his  deputy,  was  to  appoint  all  "  Governors.  Officers, 
and  Ministers  ...  fit  and  needful  to  be  .  .  .  used  for  the  Government  of 

'Thorpe.  Charters  and  Constitutions.  Vol.  7.  p.  3788:  Poore,  pp.  lSOl-2 


■its 
III 


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THE  UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 


A  Third 
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atul 

Assembly 


the  said  Colony  and  Plantation;"  and  the  council  should  hereafter  likewise 
"  make,  ordain,  and  establish  all  Manner  of  Orders,  Laws,  Directions,  Instruc- 
tions. Forms  and  Ceremonies  of  Government  and  Magistracy,  fit  and  neces- 
sary for  and  concerning  the  Government  of  the  said  Colony  and  Plantation." 
The  Treasurer  and  Company  "  and  such  Governors,  Officers,  and  Ministers  " 
appointed  by  them  for  that  purpose,  should,  within  the  precincts  of  Virginia, 
"  have  full  and  absolute  Power  and  Authority  to  correct,  punish,  pardon, 
govern,  and  rule  "  the  King's  subjects  residing  within  the  Colony,  "  accord- 
ing to  such  Orders,  Ordinances,  Constitutions,  Directions,  and  Instructions," 
established  by  the  council,  and  "  in  Defect  thereof  in  case  of  Necessity,  accord- 
ing to  the  good  Discretion  of  the  said  Governor  and  Officers  respectively,  as 
well  in  Cases  capital  and  criminal,  as  civil,  both  Marine  and  other ;  So  always 
as  the  s  d  Statutes.  Ordinances  and  Proceedings  as  near  as  conveniently  may 
be,  be  agreeable  tn  the  Laws,  Statutes,  Government,  and  Policy  of  this  our 
Realm  of  England."  * 

By  this  second  charter  the  Company  is  created  a  body  politic,  with  legis- 
lative, executive  and  judicial  functions,  and  the  council  created  by  the  first 
charter  to  reside  within  the  colony  is  displaced  by  a  governor  and  officers 
invested  by  the  corporation  with  powers  of  supervision  and  control. 

Time  and  experience  ha\ing  shown  the  need  of  ampler  powers,  a  third 
charter,  likewise  drafted  in  first  instance  by  Sir  Edward  Sandys  and  finally  by 
Sir  Henry  Hobart,  .\ttorney,  and  Sir  Francis  Bacon,  Solicitor  General,  was 
granted  in  1612,  by  virtue  of  which  the  London  Company  received  the  au- 
thority rerjuisite  to  plant,  develop  and  cultivate  the  colony  as  the  Crown  had 
and  the  proprietor  should  possess. 

Passing  over  minor  matters,  such  as  the  grant  of  the  Bermuda  Island  to 
the  Company,  the  Treasurer  and  Company  of  Adventurers  and  Planters  were 
empowered,  once  a  week  or  oftener  at  their  pleasure,  to  "  hold,  and  keep  a 
Court  and  .\sseinl)ly  for  the  better  Order  and  Government  of  the  said  Plan- 
tation, and  such  Things  as  shall  concern  the  same :  And  that  any  five  Persons 
of  our  Council  for  the  said  first  Colony  n:  I'ircjinia,  for  the  Time  being,  of 
which  Company  the  Treasure[r],  or  his  Deputy,  to  l)e  always  one,  and  the 
Nuiiil)er  of  fifteen  others,  at  the  least,  of  the  Generality  of  the  said  Company, 
assembled  together  in  such  Manner,  as  is  and  hath  been  heretofore  used  and 
accustomed,  shall  be  said,  taken,  held,  and  reputed  to  be.  and  shall  be  a 
sufficient  Court  of  the  said  Company,  for  the  handling  and  ordering,  and  dis- 
patching of  all  such  casual  and  particular  Occurrences,  and  accidental  Matters, 
of  less  Ciinscquence  and  \\'eii;ht.  as  shall  from  Time  to  Time  happen,  touch- 
ing and  Concerning  the  said  Plantation,"  '^     Here  we  have  a  corporation  au- 

'  Thorpe,  dinners  and  Constitutions.  \o\.  7,  pp.  3795.  3797,  3798.  3801 ;  Poore,  pp.  1893, 
1898,  18'»,  1901. 

-  Thorpe,  tbid.,  p.  3805 :  Poore.  p.  1904. 


EARLY   BACKGROUNDS  OF  THE   AMERICAN   CONSTITUTION 


73 


thorized  to  hold  weekly  meetings  of  such  members  as  happened  to  be  present, 
under  the  presidency  of  its  executive,  provided  not  less  than  fifteen  meml)ers 
of  the  company  attend,  for  the  transaction  of  ordinary  matters. 

But  the  affairs  of  the  company  beyond  the  seas  were  not  ordinary  matters, 
and  they  needed  the  attention,  not  of  the  few  who  might  happen  ■  Utend, 
but  of  the  many  who  should  be  present  and  take  part  in  their  settlement. 
Therefore,  the  charter  provided  for  this  eventuality  in  the  passage  of  its  text 
immediately  succeeding  that  which  has  been  quoted: 

And  that  nevertheless,  for  the  handling,  ordering,  and  disposing  of  Mat- 
ters and  Affairs  of  greater  Weight  and  Importance,  and  such  as  shall  or  may, 
in  any  Sort,  concern  the  Weal  Publick  and  ;'eneral  Good  of  the  said  Company 
and  Plantation,  as  namely,  ihe  Manner  of  Government  fn  n  Time  to  Time  to 
be  used,  the  ordering  and  Disposing  of  the  i.ands  and  Possessions,  and  the 
settling  and  establishing  of  a  Trade  there,  ot  such  like,  there  shall  be  held 
and  kept  every  Year,  upon  the  last  IVednesday,  save  one,  of  Hillary  Term, 
Easter,  Trini.'y,  and  Michadtnar  "^erms,  for  ever,  one  great,  general,  and  sol- 
emn Assembly,  which  four  Assemblies  shall  be  stiled  and  called.  The  four 
Great  and  General  Courts  of  the  Council  and  Company  of  Adventurers  for 
Virginia:  In  all  and  every  of  which  said  Great  and  General  Courts,  so  as- 
sembled, our  Will  and  Pleasure  is,  and  we  do,  for  Us,  our  Heirs  and  Succes- 
sors, for  ever.  Give  and  Grant  to  the  said  Treasurer  and  Company,  and  their 
Successors  for  ever,  by  these  Presents,  that  they,  the  said  Treasurer  and 
Company,  or  the  greater  Number  of  them,  so  assembled,  shall  and  may  have 
full  Powtr  and  Authority,  from  Time  to  Time,  and  at  all  Times  hereafter, 
to  elect  and  chuse  discreet  Persons,  to  be  of  our  said  Council  for  the  said  first' 
Colony  in  /  injinia.  and  to  nominate  and  appoint  such  Officers  as  they  shall 
think  fit  and  requisite,  for  the  Government,  managing,  ordering,  and  dispatch- 
ing of  the  Affairs  of  the  said  Company;  And  shall  likewise  have  full  Power 
and  Authority,  to  ordain  and  make  such  Laws  and  Ordinances,  for  the  Good 
and  Welfare  of  the  said  Plantation,  as  to  them  from  Time  to  Time,  shall  be 
thDught  requisite  and  meet:  So  always,  as  the  same  be  not  contrary  to  the 
Laws  and  Statutes  of  this  our  Realm  of  England; ' 

Bearing  in  mind  the  fact  that  the  third  charter  confirmed  the  powers  and 
privileges  granted  by  the  second,  while  adding  to  them  in  the  respects  quoted, 
we  have  at  last  reached,  by  three  successive  steps  the  charter  of  the  East 
India  Company,  granted  by  Queen  Elizal^eth  in  1600,  created  for  profit,  with 
the  difference  that,  in  addition  to  the  profit  from  trade,  the  charter  of  \'ir- 
ginia  contemplated  the  settlement  of  a  plantation  and  the  creation  of  a  colony 
as  well.  1-or  this  purpose  the  Company  was  empowered  to  admit  new  mem- 
bers, who,  when  admitted,  became  entitled  to  the  rights  and  privileges  pos- 
sessed by  the  other  members,  thus  making  it  possible  for  the  Company  tij  in- 
clude all  persons  who  should  become  inhabitants  of  the  colony.  Tlius,  the 
full  and  general  court,  assembled  as  aforesaid,  was  authorized' from  time  to 
time  and  for  all  time  to  "  elect,  choose  and  admit  into  their  Company,  and 
'Thorpe,  Charters  and  Conslitutions.  Vol.  7,  p.  3805:   Poore.  pp.  1904-5. 


i* 


Great  and 

General 

Courts 


'1 


II  ill  I 


iii 


*1,  IJ 


:lj 

111 


74 


THE   UNITED  STATES:    A   STIOY   IN    INTERNATIONAL  ORGANIZATION 


A  Repre- 
tentative 

Awfmbly 


A  fore. 
cast  of 
American 
Liberty 


Society,  any  Person  or  Persons,  as  well  Strangers  and  Aliens  born  in  any 
Part  beyond  the  Seas  wheresoever,  being  in  Amity  with  us,  as  our  natural 
Liege  Subjects  Iwm  in  any  our  Realms  and  Dominions ; "  and  that  all  such 
persons  were  thereupon  entitled  to  "  have,  hold,  and  enjoy  all  and  singular 
Freedoms,  Lil)€rties,  Franchises,  Privileges.  Immunities,  Benefits,  Profits,  and 
Commodities  whatsoever,  to  the  said  Company  in  any  Sort  l)elonging  o-  ap- 
pertaining, as  fully,  freely  and  amply  as  any  other  Adventurers  now  Ijeing,  or 
which  hereafter  at  any  Time  shall  \x  of  the  said  Company,  hath,  have,  shall, 
may.  might,  or  ought  to  have  and  enjoy  the  same  to  all  Intents  and  Purposes 
whatsoever."  * 

The  settlers  scattered  themselves  throughout  the  little  colony,  so  that,  in 
1619,  they  might  be  said  to  form  eleven  separate  communities,  impressed,  ap- 
parently, with  the  desire  to  assemble,  as  is  declared  to  be  the  wont  of  Eng- 
lishmen. This  they  did  under  the  authority  of  the  governor  of  the  colony, 
who  himself  was  apparently  authorized  thereto  by  a  commission  executed 
by  the  V'irginia  Company  in  Xovember,  1618,  and  on  July  30,  1619  two  mem- 
bers or  burgesses  from  each  of  the  eleven  settlements  met  with  the  governor 
and  council  in  the  little  church  in  Jamestown,  .orming  ihe  first  representative 
assembly  ever  meeting  in  the  Xev;  World. 

Two  years  later,  in  July,  1621.  this  action  of  the  governor  and  of  the  set- 
tlers was  specifically  confirmed  in  a  formal  ordinance,  which  apparently  estab- 
lished in  that  part  of  America,  now  comprised  within  the  United  States,  the 
American  system  of  lilierty,  that  is  to  say,  the  exercise  of  political  power  in 
accordance  with  and  pursuant  to  the  terms  of  a  written  document  emanating 
from  superior  authority,  whether  that  document  l)e  a  charter,  an  ordinance, 
a  statute,  a  constitution,  or  whether  emanating  from  a  company,  :he  crown, 
or  the  people.  This  ordinance,  which  is  appropriately  called  the  Constitution 
of  the  Treasurer.  Council  and  Company  in  England,  created  "  two  Supreme 
Councils  in  lirijinia,  for  the  Iwtter  Government  of  the  said  Colony  afore- 
said." -  for  the  reasons  stated  in  what  may  be  called  the  preamble  to  this 
constitution  or  instnmieiit  of  government,  and  which  should  be  given  in  their 
language  of  the  first  i)erson,  as  they  were  doing  it  direcUy,  not  indirectly. 
In  so  doing  the  treasurer,  council  and  company  declared  themselves  as  "  taking 
into  our  careful  Consideration  the  present  State  of  the  said  Colony  of 
I'irijima.  and  intending,  by  the  Divine  Assistance,  to  settle  such  a  Form 
of  Government  there,  as  may  Ik:  to  the  greatest  Benefit  and  Comfort  of  the 
People,  and  whereby  all  Injustice.  Grievances,  and  Oppression  may  be  pre- 
vented and  kept  off  as  much  as  possible  from  the  said  Colony,  have  thought 

1  Tliorpc,  Chiirtcrs  mi  J  CoMslUulions,  Vc.l    7.  p.  3806;   Poorc.  p.   1905. 
=  \\  illiam  Stitli,  History  of  the  First  Uiscoicry  and  Settlement  of  l-'irmnia,  Sabin  ed.. 
1865,  App.  iv.  p.  i2. 


KAM.Y  BACKGROUNDS  OF  THE  AMERICAN    CONSTITfTION 


75 


fit  to  make  our  Entrance,  by  ordering  and  establishing  such  Supreme  Councils, 
as  may  not  only  l)e  assisting  to  the  Governor  for  the  time  Ijeing,  in  the  Admin- 
istration of  Justice,  and  the  Executing  of  other  Duties  to  this  Office  belong- 
ing, but  also,  by  their  vigilant  Care  and  Prudence,  may  provide,  as  well  for 
a  Remedy  of  all  Inconveniences,  growing  from  time  to  time,  as  also  for 
the  advancing  of  Increase,  Strength,  Stability,  and  Prosperity  of  the  said 
Colony." 

The  first,  to  be  called  the  Council  of  State,  appointed  by  the  Treasurer, 
Council  and  Company,  consisted  of  the  Governor  and  certain  specified  per- 
sons, who  were  directed  to  "  bend  their  Care  and  Endeavours  to  assist  the 
said  Governor,"  and  to  Ije  "always,  or  for  the  most  Part,  residing  about  or 
near  the  Governor."  *  The  second  and  the  more  important  body  is  thus  de- 
scribed : 

The  other  Council,  more  generally  to  be  called  by  the  Governor,  once 
\  early,  and  no  oftener,  but  for  very  extraordinary  and  important  Occasions 
shall  consist,  for  the  present,  of  the  said  Council  of  State,  and  of  two  Bur- 
gesses out  of  every  Town.  Hundred,  or  other  particular  Plantation  to  be 
respectively  chosen  by  the  Inhabitants :  Which  Council  shall  be  called  The 
General  Assembly,  wherein  (as  also  in  the  said  Council  of  State)  all  Matters 
shall  be  decidd,  determined,  and  ordered,  by  the  greater  Part  of  the  \'oices 
then  present :  reserving  to  the  Governor  always  a  Negative  Voice  And  thi' 
General  Assembly  shall  have  free  Power  to  treat,  consult,  and  conclude,  as 
well  of  all  emergent  Occasions  concerning  the  Publick  Weal  of  the  said  Colony 
and  every  Part  thereof,  as  also  to  make,  ordain,  and  enact  such  general  Laws 
and  Orders,  for  the  Behoof  of  the  said  Colony,  and  the  good  Government 
thereof,  as  shall,  from  time  to  time,  appear  necessary  or  requisite ;  .  .  . 

But  as  this  was  an  agency  of  the  company,  possessed  under  its  charter  of  cer- 
tain enumerated  powers,  it  could  not  make  a  grant  to  its  agent  of  powers  and 
authority  greater  than  it  itself  possessed.  Hence,  the  general  laws  and  orders 
which  should  from  time  to  time  appear  necessary  or  requisite  in  behalf  of  the 
Colony  are  to  l^e  in  accordance  with  the  terms  of  the  charter,  and  accordingly 
the  general  assembly  and  the  Council  of  State  are  required,  in  the  succeeding 
passage.  "  to  imitate  and  follow  the  Policy  of  the  Form  of  Government.  Laws^ 
Customs,  and  Manner  of  Trial,  and  other  Administration  of  Justice,  used  in 
the  Realm  of  England,  as  near  as  may  be.  even  as  ourselves,  by  his  Majesty's 
Letters  Patent  are  required."  =  But  as  the  possessors  of  limited  or  enumer- 
ated powers  are  wont  to  construe  them  so  liberally  in  their  own  behalf  as  to 
exceed  the  grant,  there  must  be  some  authority  to  pass  upon  the  exercise  of 
such  powers  and  to  keep  them  within  the  terms  of  the  grant.  Therefore,  it 
was  provided  in  the  succeeding  article  of  the  ordinance,  "  that  no  Law  or  Ordi- 
nance, made  in  the  said  General  Assembly,  shall  be  or  continue  in  Force  or 

•  Stith,  History  of  Virginia,  App.  iv,  p.  33. 
-  li>iJ.,  pp.  33-o4. 


Ratiti  cation 
Kcquircd 


1  \ 


m 


■iri 


m 


.-ll 


76 


THE  UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


Two 
HouMs 


Validity,  unless  the  same  shall  be  solemnly  ratified  and  confirmed,  in  a  Gen- 
eral Quarter  Court  of  the  said  Company  here  in  Englatui,  and  so  r:.tified,  be 
returned  to  them  under  our  Seal."  And  by  an  act  of  generosity,  possible,  in- 
deed, in  men  of  good  will  but  not  to  t)e  expected  from  the  Crown  or  that  arti- 
ficial person  we  call  the  State,  it  was  further  provided  that  "  no  Orders  of 
Court  afterwards  shall  bind  the  said  Colony,  unless  they  be  ratified  in  like 
Manner  in  the  General  Assemblies." 

So  true  it  is,  as  stated  by  Guizot  in  his  History  of  Civilisation,  that,  when 
there  scarcely  remained  traces  of  national  assemblies,  the  remembrance  of 
them,  of  "  the  right  of  free  men  to  join  together,  to  deliberate  and  transact 
their  business  together,  resided  in  the  minds  of  men  as  a  primitive  tradition 
and  a  thing  which  might  again  come  al»ut."  •  Innocent  as  these  early 
settlers  were  of  the  customs  of  the  primitive  Germans,  as  depicted  by  Tacitus, 
they  were  unconscious  of  the  fact  that,  in  meeting  together,  they  were  follow- 
ing the  custom  of  the  great  assembly  in  England,  known  to  them  and  to  us  by 
the  name  of  Parliament,  the  Lords  and  Commons  of  which  met  together  and 
transacted  their  business  in  a  single  house  for  a  long  period  of  time.  In  like 
manner  so  the  governor,  council  and  burgesses  continued  to  meet  together. 
However,  in  1680,  the  then  governor,  "  Lord  Cole  pepper,  taking  Advantage 
of  some  Disputes  among  them,"  to  quote  the  language  of  a  Virginian  historian 
of  the  day.  "  procur'd  the  Council  to  sit  apart  from  the  Assembly ;  and  so  they 
became  two  distinct  Houses,  in  Imitation  of  the  two  Houses  of  Parliament  in 
England,  the  Lords  and  Commons;  and  so  is  the  Constitution  at  this  [1705] 
Dav."  => 

The  powers  of  the  company  were  resumed  by  the  Crown  in  1624.  From 
this  period  until  the  Revolution  the  colony  was  governed  under  instructions 
from  the  Crown,  as  doubtless  it  would  have  been  under  a  charter  if  one  had 
again  lieen  granted.  On  this  state  of  affairs  Mr.  Morey  feels  justified  in 
saying  in  his  own  behalf,  and  vouching  for  the  truth  of  it  a  distinguished 
Engli>li  authority,  who  can  not  !«  considered  as  having  a  thesis  to  maintain: 

It  will  be  seen  that  all  the  essential  features  of  this  constitution  were  a  re- 
production of  the  constitution  of  the  London  Company  and  of  its  prototype, 
the  East  India  Company,  namely :  { 1 )  The  three  elements  of  the  government 
—  the  chief  executive,  ttie  council,  and  the  asseml<ly;  (2)  the  administrative 
and  judicial  functions  of  the  governor  and  council;  and  (3)  the  legislative 
functions  of  the  pivenior,  council,  and  freemen  united  in  a  single  body.  The 
only  itnportant  modifications  —  nnmely.  the  intrcKluction  of  deputies  and  the 
granting  of  the  veto  jiower  to  tin-  governor — were  clearly  the  direct  result 
of  the  peculiar  circumstances  in  wliich  the  colony  was  placed;  the  one  due 
siinplv  to  convenience,  and  the  other  to  the  desire  on  the  part  of  the  company 
to  preserve  as  far  as  possible  its  control  over  the  legal  acts  of  the  colony.' 

IF.  Giiizot,  The  History  of  Civilhalinn.  1858,  Vol.  iii,  p.  199. 
*  Robert  Beverly,  Uislnry  of  I'irginia.  1722,  p.  203. 
',•!»!;.!.'?  .':/  tkr  Amrr:c:in  Acadi'mw  l.W!.  \u!.  i,  pp.  542-3. 


EARLY   SACKCROf  NDS  OP  THE   AMERICAN   CONSTITUTION 


77 


The  authority  invoked  by  Mr.  Mercy  is  that  of  George  Chalmers,  who. 
after  mentioning  the  provisions  of  the  ordinance,  says  in  his  Introduction  to 
the  history  of  the  American  Colonies,  first  published  in  1780: 

"  Thus  we  trace  to  a  commercial  company  the  source  of  those  free  sys- 
tems of  provmcial  government,  that  has  distinguished  the  English  colonics 
above  all  others  for  their  regard  for  the  rights  of  men.  In  this  famous  or- 
dinance, we  behold  the  modt-l  from  which  every  future  provincial  form  was 
copied,  though  varied  by  difference  of  circumstance."  ' 

natural  that  the  southern  colonies,  including  Maryland,  should  follow  more 
closeiy  m  the  steps  of  what  is  aflfectionately  called  the  Old  Dominion,  taking 
as  their  basis  a  trading  company  and  a  political  corporation,  with  the  seat  of 
authority  ,n  England,  not  in  America.  The  northern  colonies,  as  was  also 
natural,  followed  more  closely  the  experience  and  the  example  of  Massa- 
chusetts, m  which  the  charter  was  that  of  a  tra.ling  con,panv  and  of  a  body 
politic,  with  the  seat  of  authority  in  Plngland.  The  charter  was.  however, 
transferred  to  America  by  the  grantees,  then  apparently  possessing  what  has 
come  to  be  known  as  Yankee  shrewdness,  by  the  simple  expe.lient  of  appoint- 
mg  the  governor  and  officers  of  the  company  fron,  those  who  were  all^ut  to 
se  tie  and  who  actually  did  settle  in  the  colony.  Thus  in  New  England  the 
colony  and  the  trading  company  lK«came  one  and  the  same 

n.nl'  T'"  ^'T^-'"^  '^^'  '^'  ^'^««^>-  of  1606.  granted  to  the  London  Com- 
par^y.  d.vide.I  the  territory  in  .\merica  to  which  the  Crown  of  Great  Britl 
au  claim  into   wo  sections,  the  southern,  out  of  which  the  southern  colonies. 

which  the  colonies  of  New  England  and  what  are  now  the  Middle  States  were 
pnncpally  created.  The  second  charter,  granted  to  the  London  Companv  in 
1609.  excluded  the  northern  section  and  restricted  itself  to  Virginia  which 
extensive  as  it  was.  occupied  but  a  part  of  the  southern  division.  In  Ifi'O 
the  Plymouth  Company  obtaine<l  also  a  second  charter  .lealing  onlv  with  the 
northern  division,  which,  as  stated,  had  been  .separated  bv  the  second  charter 
to  the  London  Company  granted  eleven  vears  previously 

The  second  charter  of  the  Plymouth  Company  is  .similar  to  although  not 
Identical  with  the  second  of  the  London  Companv.  It  possesses  in  'eneral 
the  same  powers  and  authority,  which,  however,  are  separatelv  anaKved.  Bv 
this  charter  the  Plymouth  Company  l^came  the  Council  of  PIvmouth  for  Xew 
Lngland,  and  the  starting  point  for  the  colonies  of  Xew  England  and  for 
the  Middle  States  which  followed,  as  it  were,  in  its  wake. 

After  reciting  the  grant  of  the  \'irginia  charter  of  1606  and  the  subse- 

1S45,^V!^^,  pIj^'lTi/-  '""""''"*''"'  '"  "•<•  ""'""y  of  the  Rc-zvlt  of  Ih,  .-Imrrira,,  Colonics, 


Dtttlnctioa 

ttetwecn 

North 

and 

South 


4 


M 


78 


THE    L'NITEn  STATKS:   A   STIDY   IN    IVTEHNATIONAL  ORf.ANIZATION 


Th« 

I'lymouth 

Company 


qiient  separation  of  the  London  and  P'ymouth  Companies  under  the  charter 
of  16(10.  the  patent  vests  in  the  mcml)ers  of  the  Company  the  territory  from 
sea  to  sea  lyinjj  Ixtween  the  40th  dcRrce  — whidi.  it  may  Ih;  said,  passes 
through  the  present  city  of  Philadelphia  —  and  the  48th  degree  of  North 
Latituiie:  and  the  territory  was  henceforth  to  !«  known  by  the  name  of  Xew 
England  in  America.  For  the  letter  planting  and  governing  of  \cw  Eng- 
land, a  body  politic  and  corporate  was  created  in  the  English  town  of  Plymouth 
in  the  county  of  Devon,  to  consist  of  forty  persons  and  to  Ik:  known  by  the 
name  of  the  Council  established  in  Plymouth  in  the  County  of  Devon  "  for 
the  planting,  ruling,  ordering,  and  governing  of  Xew-England,  in  .\merica." 
The  council  was  authorized  to  fdl  vacancies  in  its  membership,  to  receive,  hold 
and  dispose  of  realty  and  personal  property,  and.  as  a  Ixxly  corporate,  to  .sue 
and  be  sued,  and  to  elect  frum  their  meml)ers  a  president,  to  hold  office  during 
their  pleasure.  The  council  was  also  authorized  in  its  discretion  to  admit 
such  persons  as  they  should  think  fit  "  to  lie  made  free  and  enabled  to  trade 
.  .  .  unto  .  .  .  Xew-England  .  .  .,  and  unto  every  Part  and  Parcell  thereof, 
or  to  have  .  .  .  any  l^nds  or  Hereditaments  in  Xew-England  .  .  .,"  accord- 
ing to  such  rules  and  regulations  as  the  council  might  lie  pleased  to  estal)- 
lish  in  pursuance  of  the  powers  contained  in  the  patent.  In  addition,  the 
charter  specifically  granted  full  power  and  authority  to  the  council  to  "  nomi- 
nate, make,  constitute,  ordaine,  and  confirme  by  such  Name  or  Xames,  Sale 
or  Sales,  as  to  them  shall  seeme  Good;  and  likewise  to  revoke,  discharge, 
change,  and  alter,  as  well  all  and  singular.  Governors,  Officers,  and  Ministers, 
which  hereafter  shall  be  by  them  thought  fitt  and  needful  to  be  made  or  used, 
as  well  to  attend  the  Business  of  the  said  Company  here,  as  for  the  Govern- 
ment of  the  said  CoIIony  and  Plantation,  and  also  to  make  ...  all  Manner 
of  Orders.  Laws.  Directions.  Instructions,  Forms,  an<l  Ceremonies  of  Govern- 
ment and  Magistracy  fitt  and  necessary  for  and  concerning  the  Government 
of  the  said  Collony  and  Plantation,  so  always  as  the  same  Ik;  not  contrary 
to  the  Laws  and  Statutes  of  this  our  Realme  of  England,  and  the  same  att  all 
Times  hereafter  to  abrogate,  revoke,  or  change,  not  oidy  within  the  Precincts 
of  the  said  Collony.  but  also  upon  the  Seas  in  going  and  coming  to  and  from 
the  said  Collony.  as  they  in  their  good  Discretions  shall  thinke  to  \x  fittest  for 
the  good  of  the  Adventurers  and  Inhabitants  there."  '  The  governors,  officers 
and  ministers  to  be  appointed  by  the  council  were  authorized  and  empowered, 
and  the  council,  governors,  officers  and  ministers,  appointed  !)y  the  council, 
were  authorized,  according  to  the  nature  and  limits  of  their  offices  "  within 
the  said  Precincts  of  Xew-Enj^land' ...  to  correct,  punish,  pardon,  gnverne, 
and  rule  all  such  ...  as  shall  from  time  to  tmie  adventure  themselves  in  any 
V'oyage  thither,  or  that  shall  att  any  Time  heerafter  inhabit  in  the  Precincts 


f 


'Thorpe,  Charters  ami  Cunsiilulions,  \'ol.  3.  pp.  18ol-3J ;   I'liore.  p.  9i5. 


EARLY   BACKGROL-KDS  OF  THE   AMERICAN   CONSTITUTION  79 

or  Territories  of  the  said  Collony  as  aforesaid,  according  to  such  Laws.  Orders. 
Ordinances,  Directions,  and  Instructions  as  Ijy  the  said  Councill  aforesaid 
shall  be  established;  and  in  Defect  thereof,  in  Cases  of  Necessity,  according  to 
the  good  Discretions  of  the  said  Governors  and  OtTicers  resiwctively,  as  well 
in  Cases  capitall  and  criminal!,  as  civill.  both  marine  and  others,  so  alhvays 
as  the  said  Statutes.  Ordinances,  and  I'rocecilings.  as  near  as  conveniently 
may  \k.  agreeable  to  the  Laws,  Statutes.  Government  and  I'olicie  of  this  our 
Reahnc  of  England."  '  After  providing  that  unauthorized  persons  should  not 
enter  upon  and  dwell  within  the  precincts  anil  tcuiiory  of  New  England,  and 
that  if  they  so  do  they  may  be  proceeded  against  and  expelled  therefrom,  it 
was  finally  provided,  insofar  as  material  to  the  present  purpose,  that  "all 
and  every  the  Persons,  beinge  our  Subjects,  which  shall  g,^  and  inhabitt 
within  the  said  Collony  and  Plantation,  and  every  of  their  Children  and 
Posterity,  which  shall  happen  to  Ijc  b<jrn  within  the  Limitts  thereof,  shall 
have  and  enjoy  all  Liberties,  and  flranchizes.  and  Immunities  of  free  Denizens 
and  naturall  Subjects  within  any  of  our  other  Dominions,  to  all  Intents  and 
Purposes,  as  if  they  had  lieen  abidinge  and  Iwrn  within  this  our  Kingdome 
of  England,  or  any  other  our  Dominions."  = 

Within  a  few  yeir<;  after  this  patent,  settlements  were  ma<le  in  the 
territory  adjoining  Ma-  rhusetts  Ray.  and.  desiring  to  regularize  their  con- 
dition and  to  set  up  f  r  themselves,  thev  obtained  a  grant  for  a  land  and 
trading  company.  Wishing,  however,  to  have  their  \cnttire  confirmed  by 
the  highest  authority,  they  applied  to  the  Crown  to  confirm  their  pat-nt.  to 
which  were  added  powers  of  government  by  the  rnyal  charter  of  March  4, 
K)_'8-9.  This  first  charter  of  Massachusetts  was  the  third  roval  charter  for 
New  England,  just  as  the  X'irginia  charter  of  1611-12  was  the  third  royal 
charter  for  that  portion  of  America,  and,  '  ke  it,  so  similar  in  terms  that  a 
reference  to  the  summary  of  that  charter  -■  aid  'Tice.  were  it  not  for  the 
importance  of  the  colony  whereof  it  wa-  .e  tri;  ■  and  of  the  group  of  col- 
onies to  the  north  of  Maryland. 

After  a  recital  of  the  patent  of  1620  to  tho  ( 
the  grant  by  that  Council  to  the  Land  and   1  r;i  i 
of  which  were  confirme;l  by  the  present  charti 
others  as  shall  hereafter  l)e  admitted  and  nv. 
Society  hereafter  menciVd."  were  created  "  on» 
in  Fact  and  Name,  by  the  Name  of  the  (iov.Tnn.  . 
chusetts  Ray  in  Newe-England."  by  which  name  n,. 
succession,  to  pleail  and  Ik:  impleaded,  to  sue  ami  '■- 
actions  "  of  what  kinde  or  nature  soever."  and  am' 


ril  of  Nfw  Tncjland.  and 
nrpany        KOz-S,  both 


mtec 


an<i  "  all  such 

'li  c  Company  and 

irate  and  poIiti(|ue 

jiany  of  tiie  M.i'ta- 

•. crc  to  have  ])er]H'tii.-il 

•u      and  to  mai'itain 

'd  t     ■■  acquire  .  .  . 


>  Thorpe,  Charters  anil  Cnnstitutinns.  Vol.  J,  p.  1832;  Pi 

-Th.-.rf?,  ihiii.,  p.  \ii}9:  Poore,  f.  930. 


'II 


■      I; 

.;  11 


ill 
I 
.  ,1 

4 


t  a 


'-(,. 


ill 


M 


80 


TUB   UNITED  states:    a   RTUnV    IN    INTERNATIONAL  ORGANIZATION 


any  Landcs.  Tenements,  or  Hereditaments,  or  any  GocKJes  or  Chattells,"  with 
power  to  (lisjKJse  thereof  "  as  other  our  liege  People  of  this  our  f^ealnic  of 
F.nRland.  or  nny  other  corporacon  or  Body  politt(|ue  of  the  same  may  law- 
fully doe."  ' 

In  order  to  effect  the  purpose  for  which  the  colony  was  created.  "  one 
Governor,  one  Deputy  Governor,  and  eightcenc  Assistants  .  ,  .,  to  Ik:  from 
tyme  to  tynie  .  .  .  chosen  out  of  the  Freemen  t)f  the  saide  Company,  for  the 
tyme  Iwing."  it  was  provided  that  the  officers  should  "  applie  themscU  es  to  take 
Care  for  the  l)est  disjxjseing  and  ordering  of  the  generall  huysines  and  Aflfaires 
of  .  .  .  the  saide  Landes  and  Premisses  .  .  ..  and  the  Plantacion  thereof, 
and  the  Government  of  the  People  there."  The  charter  thcreup<in  appointed 
and  mentioned  hy  name  the  first  governor,  the  deputy  governor,  and  the  assist- 
ants, to  hold  otfue  for  such  time  and  in  such  manner  as  subsequently  specified 
in  the  charter,  empt)wering  the  governor  or  deputy  governor  to  call  together 
the  niemlwrs  {)f  the  company  so  assembled.  After  authorizing  the  governor 
or  deputy  governor  to  call  together  the  company,  the  charter  then  provides 
that  the  governor,  deputy  g((vernor  and  assistants  "  shall  or  niaie  once  every 
Moncth,  or  oftener  at  their  Pleasures,  assemble  and  houlde  and  keepe  a 
Courte  or  .\>senil)Iie  of  themselves,  for  the  Ijetter  ordering  and  directing  of 
their  Affaires."  -  Seven  or  more  assistants,  with  the  governor  or  deputy 
governor,  were  to  constitute  a  sufficient  court. 

For  tlie  larger  and  more  im]>ortant  matters,  as  in  the  case  of  the  third 
charter  of  N'irginia.  a  general  assembly  was  to  be  held  four  times  a  year,  to  be 
styled  "  the  foure  greate  and  generall  Ct)urts  of  the  saide  Company,"  which 
assembly,  to  l)e  composed  of  the  governor,  or  in  his  absence  of  the  deputy 
governor,  and  of  tl.e  assistants  and  at  least  six  assistants  or  the  freemen  pres- 
ent, or  the  great>.r  part  of  them,  "  shall  have  full  Power  and  autlir)ritie  to 
choose,  nominate,  and  appointe,  such  and  soe  many  others  as  they  shall  thinke 
fitt,  and  that  >hall  be  willing  to  accept  the  same,  to  In;  free  of  the  said  Com- 
pany and  P'ody  .  .  .  and  to  elci't  and  constitute  such  Ofllcers  as  they  shall 
thinke  titt  and  rei|iiisitc  "  for  the  transaction  of  the  afTairs  of  the  governor 
and  company.  The  assembb-  \\n~  t'l  pn-;>;e>;-.  mi  .ndditiw!!.  t'tp  nttribnte  of  sov- 
ereignty '■  t<i  make  I.awes  and  Ordinnces  for  ibe  Cn^nd  and  Welfare  of  the 
saide  Company,  and  for  the  Government  and  ordering  of  the  saide  Landcs 
and  Plantacon  and  the  People  inhabiting  antl  to  inhabite  the  same,  as  to 
them  from  tyme  to  tyme  shallx:  thought  meete,  soe  as  such  Lawcs  and  Ordi- 
nances be  n(Jt  contrarie  or  repugnant  to  the  Lawes  and  Statuts  of  this  our 
Kealme  of  F.ngland." 

The  charter  thereupon  provided  that  oflficers  of  the  Company  were  to  be 

*  Thorpe,  Charters  and  Constitutions,  Vol.  3,  p.  1852;  Poore,  p.  936. 
2  Thorpe,  ibid.,  pp.  1852-53;  Poore.  p.  937. 


EAtLY   ■ACKCBOLNM  OF  THt    AMERICAN    CONSTITl'TIOM  81 

^  I.rt.-.l  annually  in  the  meefinR  of  the  general  curt  or  a.seml.ly  hcl.l  .r  I-aster 
an.  authority  is  given  to  t.ll  I.  a  „,ajority  of  voices  vacancies  causc.l  .kIkt  by' 
.leath.  resiRnation  or  removal  for  cause;  that  the  ofticers  so  ap,>.,inte.l  were 
required.  l«fore  undertaking  their  duties,  .o  take  an  oath  forVlu-.r  faithful 
performance:  that  .«ths  of  supremacy  an.l  alleRiancc  were  to  Ih.  taken  by  all 
prospective  coI.,„,s,s.  that  the  colonists  an,|  ,hcir  children,  whether  lK,r„  in 
J-.nBland  or  ,n  the  colonies,  were  invested  with  all  the  lilnrrties  and  immunities 
..f  Mil.jects  ,n  any  of  the  IJritish  dominions  as  if  Ix.m  within  luiRland  There- 
upon, follows  the  s,K-c„ic  authorization  to  ,he  ,'overnor  or  dq.utv  Ruvernor 
assistants  and  freemen  of  the  comp;.ny  assembled  in  one  joint  court 

Cmmoni  -s  „     (■  ''"*"  V' ^r-'K'^'"'-  '«*^^''"  f"r  setlin^  of  the  Formes  an.l 

of  Ufficers.  lH„|,  MitHT.or  and  inferior,  which  thev  s^.r.ll  fn,       u--  e     U  f  r 

civilly  Rovcrne.l.  as  their  Rood   Life  .in.l  ord.Tli.Cnnv. '•.''•  •^"'' 

r^£-;:S-i1al^^!/M";;^™^^ 

Inasmuch  as  the  provisions  of  this  charter  speak  for  themselves  it  does 
not  seem  n-cessary  to  comment  upon  them  further  than  to  sav  tha,  the  .nr 
o.s  itutes  the  Rramees,  and  su.h  persons  as  they  should  admit  tot':! 
panv.  Its  represematives  m  legislative,  executive  and  judicial  matters  „ 
u-daiKe  w,th  th,..  terms  of  the  charter,  with  the  usual  provision  t  .at' all 
aaion  should  be  in  conlonmty  with  the  laws  and  customs  of  England     [Z 

c  u,  etts  l^y  ,„  New    -.nglancl      was  established  at  Salem  un.ler  the  direction 
...  John  Lndicott.     Shortly  thereafter,  in  1630.  the  charter  and  government 


I    |- 


:ll 


is 


-f  1l 


!  T!s.M-i-v. 


::art.TS  j;ui  I.  „,ul,li,ii„ns.  Vol.  3.  p.    IHS7  :   I'oorc.  p.  040. 


82 


THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANlZATIi)N 


Grnwth 
of  Rcpre- 
sentjtive 

Institutiona 


of  the  colony  were  transferred  to  America,  the  local  government  was  disci.n- 
tinued,  and  remained  in  effect  until  the  charter  was  annulled  in  1684,  which, 
however,  was  replaced  by  a  royal  charter  in  1691  after  the  expulsion  of  James 
II,  granting  substantially  the  same  rights  and  privileges,  with  the  exception 
that  the  governor  was  hereafter  to  be  appointed  by  the  Crown  instead  of 
elected  by  the  Assembly,  as  under  the  previous  charter. 

There  is  an  interesting  passage  in  Mr.  Hutchinson's  History  of  the  Colony 
of  Massachuscts-Bay  in  which  that  devoted  son  of  New  England  and  accurate 
historian  traces  the  origin  and  growth  of  representative  institutions  in  the  Bay 
Colony.  "  The  people,"  he  says,  "  began  to  grow  uneasy,  and  the  number  of 
freemen  being  greatly  multiplied,  an  alteration  of  the  constitution  seems  to 
have  l)cen  agreed  upon  or  fallen  into  by  a  general  consent  of  the  towns,  for 
at  a  general  court  for  elections,  in  1634,  twenty-four  of  the  principal  inhal> 
itants  appeared  as  the  representatives  of  the  body  of  freemen,  and  before 
they  procee 'c(l  to  the  election  of  magistrates,  the  people  asserted  their  right  to 
a  greater  share  in  the  government  than  had  hitherto  been  allowed  them,  and 
resolved,  '  That  none  but  the  general  court  had  power  to  make  and  establish 
laws  or  to  elect  and  appoint  officers,  as  governor,  deputy  governor,  assistants, 
treasurer,  secretary,  captains,  lieutenants,  ensigns,  or  any  of  like  moment,  or 
to  remove  .iich  upon  misdemeanor,  or  to  set  out  the  duties  and  powers  of 
these  officers  —  That  none  but  the  general  court  hath  power  to  raise  monies 
and  taxes,  and  to  disi^se  of  lands,  viz.  to  give  and  confirm  proprieties.'  "  * 
Mr.  Hutchinson  states  that  after  these  resolutions  they  proceeded  to  the  elec- 
tion of  magistrates  and  that  they  further  determined  "  That  there  shall  i)e 
four  general  courts  held  yearly,  to  l)e  summoned  by  the  governor  for  the  time 
being,  and  not  to  In:  dissolved  without  the  consent  of  the  major  part  of  the 
court  — That  it  shall  be  lawful  for  the  freemen  of  each  plantation  to  chuse 
two  or  three  before  every  general  court,  to  confer  of  and  prepare  such  busi- 
ness as  by  them  shall  lie  thought  fit  to  consider  of  at  the  next  court,  and 
that  Micli  iKTMms.  as  shall  l)e  hereafter  so  deputed  by  the  freemen  of  the 
several  plaiuations  to  deal  in  their  I)ehalf  in  the  affairs  of  the  commonwealth, 
shall  have  the  full  power  anil  voices  of  all  the  said  freemen  derived  to  them 
for  the  making  and  establishing  of  laws,  gr.inting  of  lands.  &c.  and  to  deal 
in  all  other  affairs  of  the  commonwealth,  wherein  the  freemen  have  to  do.  the 
matter  of  tl.ctioii  of  magistrates  and  other  officers  only  excepted,  wherein 
every  freeman  is  to  give  his  own  voice."  Mr.  Hutchinson  vouchsafes  a  fur- 
ther reason  f(jr  this  action  on  the  part  of  the  early  settlers,  saying:  "  The  free- 
men were  so  increased,  that  it  was  impracticable  to  (lel)atc  and  determine  mat- 
ters in  a  body,  it  was  l>esi(les  unsafe,  on  account  of  the  Indians,  and  prejudicial 
to  their  private  affairs,  to  be  so  long  absent  from  their  families  and  business. 


>  niitchinjun.  }iis 


■f  Mr. 


,h,ir.-ltr-Riii 


.^.S-ft 


EARLY   BACKGROUNDS  OF  THE  AMERICAN   CONSTITUTION 


83 


|0  that  this  representative  body  was  a  thing  of  necessity,  but  no  provision  had 
l«en  made  for  it  in  their  charter."  Anticipating  Sir  John  Seeley's  happy 
remark  that  ,t  is  in  the  nature  of  Englishmen  to  assemble,  he  comments  on 
this  incident,  rightly  connecting  it  with  that  of  Virginia,  for  from  the  action 
of  these  two  colonies  representative  government  in  the  western  world  is  to 
be  dated :  "  Thus  they  settled  the  legislative  body  which,  except  an  alteration 
of  the  number  of  general  courts  which  were  soon  reduced  to  two  only  in  a 
year,  and  other  not  very  material  circumstances,  continued  the  same  as  long 
as  the  charter  lasted.  This  I  suppose  was  the  second  house  of  representatives 
in  any  of  the  colonies.  There  was.  as  has  been  observed,  no  express  provi- 
sion for  It  in  the  charter,  they  supposed  the  natural  rights  of  Englishmen 
reserved  to  them,  implied  it.  In  Virginia,  a  house  of  burgesses  met  first  in 
•May  1620.  The  government  in  every  colony  like  that  of  the  colonies  of  old 
Kome  may  be  considered  as  the  eMgics  pan-a  of  the  mother  State."  » 

As  in  the  case  of  Virginia  for  a  period  the  two  houses  sat  together,  so  in 
Massachusetts  they  were  together  for  ten  years,  when  a  separation  took  place 
for  the  reasons  and  with  the  results  stated  bv  Mr.  Hutchinson :  "  About  this 
time  there  was  another  struggle  for  power  between  the  assistants  or  magis- 
trates and  the  deputies.  The  latter  could  not  bear  their  votes  should  lose  their 
effect  by  the  non-concurrence  of  the  former  who  were  so  m„ch  fewer  in  num- 
ber; but  by  the  firmness  of  Mr.  Winthrop.  the  assistants  maintained  their 
right  at  this  time,  and  (March  2.S.  1644)  the  deputies,  not  being  able  to  prevail, 
moved  that  the  two  houses  might  sit  apart,  and  from  th.-it  tinu  votes  were 
sent  in  a  parl.amentar>-  way  from  one  house  to  the  other,  and  the  consent 
of  both  was  necessary  to  an  act  of  the  cotm."  = 

Thus,  the  colony  of  X'irginia.  under  the  charter  of  a  trading  company  with  JiSuKM 
Its  governmg  l)ody  in  the  home  country,  and  the  colonv  of  Massachusetts,  un-  k^'pired"  ' 
der  the  charter  of  a  trading  company  with  its  seat  of' government  in  the  col- 
ony, provided  the  same  course  of  development,  tlie  one  serving  as  a  model 
for  what  may  be  called  the  southern  colonies,  and  the  other  for  those  which, 
in  comparison,  may  lie  called  the  northern  colonies.     In  each  case  a  charter 
created  a  body  politic,  empowered  to  make  laws  for  the  government  of  the 
inhabitants,  conforming  as  far  as  possible  to  the  laws,  customs  and  institu- 
tions of  England.     In  each  case  a  governor,  supplied  with  a  council  or  assist- 
ants, was  the  executive.     A  legislature  in  each  came  into  being,  .sharing  with 
the  council  the  making  of  laws  in  common,  and  in  each  case  separate  but 
nevertheless  sharing  in  the  responsibilities  of  government.     In  each  case  the 
authorization  was  a  written  instrument,  a  charter  or  a  constitution,  within 
which  the  actions  of  the  colony  were  lawful  and  beyond  which  their  actions, 

'  SV*"^*"'"'""-  //«'"»•>'  of  the  Colony  of  Massachusets-Ba\,  p.  37. 
'  /pirf.,  p.  143. 


II  il 


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-Ul 


til 


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THE    t'NITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


il^' 


New  Imtni- 

mcnts  of 
( .iivcrtinient 
Revert  td 
to  Charters 


whether  executive,  legislative  or  judicial  were  unlawful  as  in  excess  of  tin; 
grant.' 

We  of  today  should  say  it  was  to  be  expected  that  the  colonies  would,  when 
they  had  broken  with  the  mother  country,  fasiiion  their  future  according  to 
their  own  desires,  and  that  in  so  doing  they  would  revert  to  written  charters 
in  which  the  rights  of  governors  and  governed  were  stated  in  clear  and  un- 
mistakable terms.  This,  with  the  exception  of  Connecticut  and  Rhode  Island, 
the  thirteen  colonies  did  when  they  declared  themselves  to  be  independent 
States.  This  the  States  did  when  they  confederated  for  the  first  time, 
drafting  .Articles  of  Confederation  in  their  Congress,  to  be  binding  upon  all 
when  ratified  by  each.  This  representatives  of  the  States  did,  assembled  in  the 
Federal  Convention  in  Philadelphia  in  1787,  when  they  formed  a  more  perfect 
Union  than  that  of  the  Confederation,  in  that  charter  of  the  Union  and  of  the 
States  which  we  call  the  Constitution,  defining  the  rights  of  the  Union  and  of 
the  States  and  of  the  peoples  of  the  States,  with  courts  of  justice  to  pass  upon 
the  acts  of  each,  holding  them  valid  when  within  the  grant,  holding  them 
invalid  when  beyond  the  grant,  just  as  in  colonization  days  acts  in  excess  of 
the  charter  were  declared  to  be  null  and  void. 

'  This  process  is  stated  in  very  brief  compass  by  Richard  Frothingham  in  a  note  to  page 
18  of  his  Rise  of  Ihn  Kcpublic  uf  llu-  i  iiiti-d  Stale -,  which  is  litre  reproduced; 

Bancroft  (i.  250)  remarks,  that  "popular  assemblies  burst  everywhere  into  life  with  a 
consciousness  of  their  importance  and  an  immediate  capacity  for  efticient  legislation."  These 
assemblies,  in  some  cases,  at  lirst  were  composed  of  the  whole  body  of  freemen.  The  dates 
of  the  formation  of  representative  assemblies  to  make  laws  in  the  colonies  are  as  follows;  — 

Virginia.  July  30,  1619. —  The  governor  summoned  two  burgesses  from  three  cities,  three 
huiiilreils.  three  plantations,  Argals'  gift,  and  Kiccowtan. —  Proceedings  in  New-York  Hist. 
Soc..  Coll.  2d  ser.  Ill,  comnnuiicated  by  Bancroft  in  1856.  The  governor,  council,  and  bur- 
gesses continued  to  meet  together,  Beverly  says  (Hist.  Va.  b.  iv.  jl),  till  1680,  when  "  Lord 
Coiepepper,  takmi;  adx  iitaKi-  of  some  disputes  among  them,  procured  the  council  to  sit  apart 
from  tile  assembly ;  and  so  they  became  two  distinct  houses,  in  imitation  of  the  two  Houses 
of  Parliament  in  Fngland, —  the  Lords  and  Commons, —  and  so  is  the  Constitution  at  this 
(1705)  day." 

Massachusetts,  May  19.  1634.—  To  the  surprise  of  the  magistrates,  twenty-five  delegates, 
chosen  by  the  frecnun  of  the  towns,  of  their  own  motion,  apiwarcd  and  claimed  a  share  in 
mnkinn  the  laws.  The  claim  was  allowed,  and  their  names  appear  on  the  records  of  the 
day,  with  the  magistrates,  as  part  of  the  General  Court.  They  sat  together  for  ten  years. 
In  UAA,  the  "Massachusetts  Records"  say  (i.  58),  on  account  "of  divers  inconveniences," 
of  the  magistrates  :iii'l  cleputies  sitting  together,  and  "accounting  it  wisdom  to  follow  the 
laudable  practice  nt  other  St.ites.  who  have  laid  groundworks  fur  government,"  it  was 
ordered  — both  sitting  together  —  that  each  should  sit  apart;  and  they  became  co-ordinate 
and  co-equal  branches,  the  assent  of  Imth  being  necessary  to  make  a  law.  Plymouth  had  a 
representative  asscniMy  in  16.W  The  charter  of  1692  named  twenty-eight  persons  as  co\m- 
scllors :  afterwards  they  were  chosen  annually  by  a  joiiit  vote  of  a  new  House  of  Representa- 
tives and  the  old  counsellors. 

Connecticut.  Jan.  14,  1639. —  An  agreement  among  the  towns  to  be  as  "one  public  State 
or  commonwealth."  provided  for  a  representative  assembly,  consisting  of  deputies  chosen  by 
the  freemen,  who,  with  a  governor  and  council,  composed  the  legislative  power.  They  sat 
together.  The  charter  of  1662  provided,  that  the  governor,  deputy-governor,  and  twelve 
magistrates  should  he  chosen  at  a  j^eneral  election,  and  deputies  should  Ite  chosen  by  the 
towns.  .Ml  these  officers  sat  together.  In  1698.  it  was  ordered  that  the  governor  or  deputy- 
governor  and  magistrates  should  be  called  the  upper  house,  and  the  deputies  the  lower  house, 
that  thev  should  sit  apart,  and  that  no  bill  become  a  law  without  the  consent  of  both.— 
Trumhull's  Connecticut,  i.  102.  399. 

Marvland,  February,  16.19.— .^n  assembly  of  the  body  of  freemen  made  provision  for  a 
r<r.rr=."r.f3tivr  sticmhlv  (Chalmers'  .Annals.  213:.     The  composition  of  this  body  was  pecul- 


EARLY   BACKGROUNDS  OF  THE   AMERICAN   CONSTITUTION  85 

I'll;..?''!.*^!.^^"^'""'''  '^  '•>"•  "'^''  ""P""  *'■'"  **'"»  '"^sued  by  the  governor  deleRate* 
«^in.  ^  *'' ,y^^T^  u^"^  '"  *'•  "  burgesses,  one  or  two  for  each  hundred  w  th  the 
^  n^hrr,  "^r","^  'f'f  ^^  ""  lf°'---'""\'""^  '"'*'  '''""'"  "  ''^^  "ot  consented  to  the  elect  n 
Th-  !?.?,'  "^  »"y  «Y''''*  ",'■,„'""'■*■  "f  «*'«'"•  "■'••I'ldinK  alwavs  the  governor  and  "ecretarv" 
U)  the''astemhi?n-:""'H'  ^"^  "^"  .'«i.  "'  't''^'  '°  »*'  by  themselvel ;  anX  in  1650  I  Griffith. 
!«-;Ji^rvV  t       ^  ^,"'f  *u  ^"^^  dividing  themselves  into  two  houses;   the  gover^ior  and 

^Lred^o^tX'niVor  p^ar^ofTrh^^rr^  ^ .'a'^s'"^^"^"  ""=  '°*"  '-"""^  "^  ""  ""'» 

£^-Sf:^a;^;n=rrr^^:e:;;]:!rt^^ 

pro^sedaws  before  they  were  presented  to  a  general  assembly.- Arnold's  Rhode  Island. 
I.  «jj.  13)  ine  ctiarter  of  I66J,  a  governor,  deputy-governor,  and  assistants  were  tn  h.. 
chosen  annually  at  Newport;  and  deputies  were  ti  be  chosen  by  eVh  to«n      U  Mrst    lU  sat 

magistrates,  were  the  ...plr^ho^l'sl  ;'Z  depTes^'thYlower  hli'V'""""^  ""'  "^"'■^"'''  °^ 
,„f^'•':*"  ^?,''.?''"=>'  "567-  Settlers  were  invited  into  this  colony  I,y  the  promise  of  leuislative 
freedom.- W  illiamson.  ,94.  Hawks  (i.  144)  thinks  there  was  an  assembly  in  1666  h,^ 
the  general  asseml.ly.  under  the  charter,  consiste.l  of  the  governor  were  council^s' and 
twelve  delegates,  chosen  by  the  freeholders.- Chalmers,  524  At  a  later  periiTwhUe  under 
'  New'Ver^ev  '^\^^  ^*^^'  '"*  "'""f^  assembly  was  divided  in" 'Jwoho,'^e','.'=  '""*" 
Vv/?tT  /^"'^'i  .'™»— This  proprietary  colony  was  divided  at  first  into  liast  Jersey  and 
\Vest  Jesey,  which  had  separate  assemblies:  the  first  held  in  1-ast  Jersey  was  on  May^ 
i^-  t  .    '"  ^\'f  •''"'^•,  •^°^-  ^5-  1681.- Gordon's  New  Jersey,  4I48.     I„  iVS".  the  tfo 

rrs  ,u-  of  ,h"  •  •■*  '"*■"'  K^^'^'iP"'?"'  ^"'"""^'  ='"d  "  8'"""'  •■""'■"bly  provided  for,  con- 
sist ng  of  the  governor,  a  council  of  twelve  nominated  by  the  king,  and  a  house  of  renre- 
sentatives  chosen  by  the  freemen  of  the  counties  and  cities.  They  sat  together  In  17J8 
he  council  was  made  a  separate  branch;  the  governor  withdrew  from  tt,  an'dn^  longer  w^j 
the  i.risnlini;  otlicer.-Mullords  New  Jersey   335  "  lu-igcr  was 

South"  Car^oh,^'"i'  w""'?;  ^IfiT^^h^T  P^°'"i^^d  a  share  in  making  the  laws.- [<amsny'5 
there  «T?ei,    i    r^?' "  h  '   ""^   ^'"■"'*"  el«=':«^<i . '"epresentatives,  when,   Ramsay   savs. 

tnere  «eri  (ib.  1.  35)  the  g.uernnr,  and  tipper  and  lower  houses  of  assembly  and  these 
O^ree  branches  to.,k  the  name  uf  parliament."  The  colony  became,  in  1720,  a  ro  .d  1  en,! 
mem  It  was  settled  that  the  governor  and  council  be  appointed  by  the  king,  a.  the  reo- 
resentatives  be  chosen  by  the  people.    The  whole  house  was  chosen  at  ChaHe  ton    whe?e 

r;!p.:  Vi;;"Sf  ;,vs:fe  '»^,s:i  •i^^K!^.sST!^;i^^M 


iliJl 


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■    'I 

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Kx.  claimed,  under  the  chirter  of  1681,  a  separate  assembly,  which  they  obuined,  but  had 
the  same  executive  as  Pennsylvania. 

New  York,  Oct.  17,  168J.— The  sovcmor  called  an  assembly,  composed  of  seventeen 
delegates,  who  adopted  a  charter  of  liberties  apportioned  the  representatives  to  the  counties, 
and  claimed  to  be  a  free  assembly  —  Dunlap  s  New  York,  i.  134.  In  1791,  the  first  assembly 
convened  after  the  Revolution,  and  consisted  of  seventeen  delegates.  The  acts  of  this  as- 
sembly are  the  first  that  were  considered  valid  by  the  courts  of  law.—  Smith's  New  York.  87. 
The  assembly,  down  to  the  Revolution,  did  not  exceed  twenty-seven  members.— Dunlap's 
New  York,  i.  212.  The  council  consisted  of  twelve,  nominated  by  the  crown,  as  was  the 
•'overnor,  and  sat  by  themselves. 

■eorijia.  1754. —  The  first  representative  assembly  was  called  by  the  governor  under  a 
tirm  of  tjnvernment  matured  by  the  Board  of  Trade,  and  authorired  bv  the  king.  It  was 
composed  of  nineteen  drlepates  from  three  districts,  and  (McCall's  Georgia,  i,  248)  had 
power  similar  to  other  colonial  asscmbUei. 


'  'i  3  '4*. 


FURTHER  COLONIAL  PRECEDENTS 

by.fhr  mrre  dint  ^rrensl  a  ml  .V,"on  To  effeA"'iV  "^^r""  .'"'"''''*'"?'"''  ''  =>''''' 
unite  in   thir,  work:     Kxperirnce  must  Ri?^' their  labour  ■     Ti™j"^*^."."'    °f.  "'='">    """^ 

./  M.  Aru  on,  Sciences.  E^X  an^^-fCr..  /vr;L(f^o^?4'^;/''^^  "V)'^'''^"" 

there  wa,  nothing  Mar.lin^n  ^mp^wer  nr'he^  u^^^^^  ''^  ""^  ^"'^  C°"""'' 

the  constitutionality  of  Acts  passed  by  assemblies  whrZ  to  pronounce  ,n  given  cases  upon 
stituton,  just  as  the  authoHtv  nf  .1  n  !.^i  ■  i  ?  *.  P"**"  were  limited  l.y  the  Con- 
Act  of  Parliament  (l/ftrrrvS„  li'rA  7«?LW"'"7'  .^'J'"".""^  ^^  charter  or  by 
Constitution.  1885.  8th  edition! Z]p"^,)"''°'^"^^^^^  '"  ""  ^""'^  "f  the  Law  of  the 

C^^(^'c:}^tr°i:tJ^t:rl^t:'^:ir^^^^  "  •'—'«-•  Civili.ie,  and 
ment  and   Infringement  hath  ever  Ik ne  and  ever  wfl    h',  IS^  J'"''^'}^""  *'";""•   '"^"'"'^ 

Si^nli^^',^:--*-"^'-  ^"'  '^^^"^'' o^tpl^^js^ffl't^i^ilr^^^^'rn:^? 
of  J^'^  G;:!2r;'mt7tu;;t:r  e^'rist'^nt^h'  r  r  ■^''""'  •.-'  '-••'"  "'^""■•^hing 

may  concerne  us.  and  our  posteritie  after  ,,   \nd    r.  r/.T   .7"  '"•    °'  >•'"'■"'  "<-   f-^"'* 

Wee   doe   therefore   this   day   relUious  v  and    Lln'I^'     ,""  .*'"'  "'"  """'•'""^  ''""''•^"t. 

following   Rite,.   liberties  and   privele^Res  Von"^^^^^^^  ="':^  5.""«^"^'-   f'ese 

^^resj^tively  impartiallie  and  LiolabiV  ^^C:!':::^^^^^^;!:!:;;:^  ^l^^-.^^ 

-oL':°,^^„\ll,^''^\li:^lZ^^^^  -me  shall  1.  stavned. 

no  man  shall  be  deprived  of  his  wifeT  children  1  •l''"""'"'"-^;'.  "or  any  waves  punished 
away  from  him,  nor  any  way  indamma Jd  nH  '  T^"'  fT'''  "■■  "•=•'•*  'ball  be  taken 
thoritie.  unlesse  it  be  by^er?ue  or  eTi^fe  of  some  T^Z'J,^^^'  °^C"i'"'^"ance  of  Au- 
the  3a.ne.  established  by  a  g.  nerall  Co  irt  and  sXien.K  nf,1 1  T  ."'  "'^  '^°""«^y  «aranting 
of  a  law  in  any  parteculerSase  bv  , he  wo  ,  "f  f^^^''>' P"  .'''f^;!.'  °\  "}  ^^^^  "f  the  defecf 
concerninK  dismembrinR  or  banishment  accord  ne  to  that  word  ./^f"''^]'  'r,*'''  ?'  '"  "^" 
2.  Every  person  within  this  Jurisdiction  whether  nh;,IWt/n;  ^  ""^-^"^  ''''  '^'  r.cnerall 
same  justice  and  law,  that  is  Renerall  for  tTie  nhmLiof,  ^^  i?*"  f""'''""  shall  enir.v  the 
r.ne  towards  another  without  partia  it  ^ord  lav  ri,*';'i,*^  T"  constitute  and  .-xecute 
Colon.e  in  Xe-.v  England.  i6^r.'^OId  South  UaH^ls.  Vol  ritxo' ,^l   'J'^J^^'-chuscts 

In  appealing  to  the  common  law.  as  the  stand^ir^    ,f  •  •        . 

meaning  of  written  instrumems:  there  is  saf en  cort»' L"'^'!''''"'. '"  •^''  ''""'"'  ''  <"  'be 
of  the  colonies  uerc  base.l  upon  it:  i,  w.is  hci'r  sv  fer^f  ""  :"'"'T">'-  "^''^  institutions 
exceptions,  to  suit  the  condition  of  the  colonis  s  ^Vh^  .iC-  "''"•?P'-iidence,  with  only  local 
mheritance,  9  Cr.  Mi.  in  its  larpest  sense    ir^.l,,^-       .^1^^""'^'' . "  "  ^^<^"  birth-riRht  and 

p.  39.  58  So  It  continued  after  the  colonics  becamT  «m  «  •  '^  '''■^''  ?'"  '^»  '•  ^  S.  &  R. 
law  was  adopted  by  acts  of  assembly,  which  .av^Tth.  fir  '  "V""'*  "'  »*'''^''  "'^  '"•""•on 
such  adoptK.n,  and  as  it  w:.s  then  so  that  h,  th,  ll„l  ^^  ']'  ?.='^""^-.  from  the  time  of 
t.on  of  the  cn-titution,  there  were  no  states  in  hk  i'J  ^'"'ti  "^  "'!'  Court -"  A,  ,|,e  a,lop- 
was  not  essenlially.  that  ,.f  ,he  comt^^Ia^  Tn^,',' iirt',^e; '■''''  "^  7^"^''  l"ris,  r  .dcn'e 
were  contemplated,  in  which  it  would  not  ex  s''  3  p',  ^"'!1« '  ,■•""'.'  I>';o''»'''>  >">  stales 
which  the  federal  s.vstem  of  jurisprudence  wa  erected  L^''  *^  "■"  ?'*°  ""^  "-^sis  on 
and  process  acts,  which  refer  .0  ■' .as.s  .„y:Ti  ^-^^--^lir^c;;;;^!^^^ 


,     !  'I 

-■;lll 


■li 


ii^f 


!  it.' 
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88  THE   UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 

/•,•   •    n;]        '    ."'i'   »"''*"«   »'l"Ptfd   as   then     indrrMiKKl    by   the   old   ,tat«      r  1/r 

orKan,,al,on    Rram.ng  large  powers  of  k.Ki,Utinn'an.l  i^hnini,,ratTon    am       ,00,^^.'^'^^ 

E^,ur^/ ^f^;Jr^n:::i,^z:r%o!^z:'^jh.  ^-'i-r  ^•o— "'-'^'^  ^ 
in  I'lj.sj^^'Tr^^u^ii'^xr.hra-^?^!^  tx^'o?  ;he^!^?'cj::;!;(j 

wore  thus  made  a  standing  tribunal,  by  the  na,m-  of  the  LordT  ,Tf  Trade  and  Plantat  on 
B>  the.r  amhonty  any  coronial  statute  coul.l  W-  set  asi.fc  as  ..n.-iuihori/ed  v  the  char  e?' 
and  the  ludsnients  of  the  colonial  courts  re-examined  and  reverse  .  "on,  17  8  d^,w.,  ,0 
the  treaty  of  peace  «^th  the  I'nited  States  in  I78J  they  were  prov  ,leT  with  a  M«cia^ 
GeZal  for'advicr"'  '"""  ""'"«  '"•"''"  '"  ""  °"  «he' Attorne'y-Generarand  SoS! 
In  one  respect  this  royal  prerogative,  which  was  not  infrequently  exercised  was  favorable 
to  the  .levelopiiient  of  .American  liln-rty  and  law.  It  securcll  a  certain  uniti*?  movement 
m  their  growth.  K  pro.luced  symmetry  of  form.  It  bnilt  up  a  sent  n  ent  of  o>n  mon 
nationality.  It  promoted  the  study  of  legal  institutions.  It  hdped  to  rear  an  \r  "r^^an 
bar   worthy  of  tlie  name.     (Simeon  E.  Baldwin.  Conslilulwnal  Law.  T^o  Centuries' Grouch 

In  order  to  prepare  the   xyay  still   further   for  the   proposition  to  be   set   forth  in   this 
article   it  is  necessary  to  say  t'lat  tho  Feder;,!  Constitution  is  not  only  not  a  fia  "onsthution 

Fn^^fand  tT.Un  ^Vl"  "\  '^  ''"""'"'•  ""'  "  '"^^  "'  '^'  ^""teiJiporarv  consHt.i  ion  of 
,^  fhf.  'rm  /  .  ,  "  f°"'"'?''."P.on  any  prevous  body  of  institutions  which  existe.l  merely 
m  the  form  of  customs.     .As  it  is  itself  primarily  a  body  of  written  law,  so  it  is  based  upon 

l-ol   I   p   ZT)  --irnvrxcan  Academy  of  Political  and  Social  Science.  l8<j6-9t. 


The  law- 
land   C(d<inies 


of  corpora  ions  was  the  law  of  their  being  for  the  four  original  New  Eng- 
i.  Of  whatever  else  they  might  be  ignorant,  every  man.  woman  and  d.ild 
must  know  something  o  that.  It  gov-rned  all  the  relations  of  life.  Th  swaT  true  whe  her 
^;sfwh"T';i  '"  "''"•;''  '^'^  ^"'  subject  was  set  up  under  a  charter  from  he  crown  oJ 
tb.ise  who  hel.l  a  royal  patent,  nr-as  in  New  Haven -was  a  theocratic  republic  owiiie 
Its  authority  >o  the  oui^ent  of  the  inhabitants.  The  one  rested  on  ,  e  aw  of  "prrvate 
corporations    ,/,•    ,urc:    the    other    on    that    of    public    corporations    dc    facto.     (Simel»    E. 


Bald 

^(>t.  I 


.i«,  Constitutional  Lau:  Two  Centuries'  Groivth  of  American  Law  170,-1901    , 90.'.  p. 


The  pr-xeedings  of  a  legal  character  in  which  the  colonies  had  always  been  most  inter- 
ested were  those  which  took  place  in  Fu^land  concerning  their  own  charters 
.„!  tl'^-  '■arl'"  colonial  charters  were  such  as  were  appropriate  for  the  regulation  of  a 
trading  adventure  or  land  speculation.  Those  to  whom  ti.ey  were  granted  occupied  the 
relation  o  sliareho  ders.  and  ..l,,,ed  their  lK,ards  of  .lirection  and  govern.uen  to  sit 
n  .ng  and.  Long  l^fore  1701.  these  boards  in  most  of  the  colonies  had  been  replaced 
by  local  Ugislatures  meeting  on  American  soil,  and  the  authority  of  foreign  proprietaries 
was  .soon  to  be  withdrawn  in  all.  ...  k-'si^'ic^ 

It  IS  not  surprising  that  English  and  .\merican  lawyers  should  have  been  inclined  to 
look  at  the  powers  of  the  colonial  assemblies  and  courts  in  very  different  wavs  The 
doings  of  the  original  companies,  umler  which  the  firitish  plantaiions  here  were 'made 
were,  of  course,  as  they  t<x)k  place  in  England,  fully  subject  to  control  by  the  Knelish 
courts.  ...  J  f. 

The  system  of  judicial  appeals  to  the  King  in  Council  was  worked  out  with  more  and 
more  precision  as  the  eighteenth  century  advanced.  . 

Some   of   the  judgments   rendered   by  the   Kinit   in   Coincil  ileni.d   v.>!iditv   to  -ol—si! 


FURTHER  COLONIAL   PRECEDENTS 


89 


statutes  which  wtre  of  the  firit  importance.    Such  was  that  in  the  case  of  Winthrnn  v 

land  rrspectins  primoKeiiiture.  >."iiii.ij.  lu  un.  laws  ot  tng- 

Certain   political    ideas    were   thus   firmly   embedded   in   the    American   mind     On,.   «•,. 

that  every  statute   was   sub  ect   to  he   set  aside   if   its  enactment   tran^rrnX?!   .1,     „       " 

mak1nK''bUy  °t7at"",dv"c''o«M''^  ^h™^"'  ^''"'';  """  ^»""^''  '"«"  ''""«  »  subordinate  law- 

in'trumem  to  wh  ch  u'owed  it,  ix^sUce     Tn'  ^'""l^!'"'■  T.'"*"''!''  ""^  ""»"»  "'  '"e 

whether  thV  sta»„.-..r.  i     k         u  "     '"  '^r'""'"'  '""*»  "questions  somet  mes  arose 

er;edhy  the  charter     "d    if  ?h,^     ^''"'  ""^"l^.es   w.re  in   excess   of   the  power,  eon- 

the  courts    that  is  t'^sav    in  , hi  «..*'•  '?  *"f  '"il""^  '?  «'.^^'"-  «'"'>'  "•"<■  I^^'*'  ""^'i''  by 

Art^:'^>Sl;^S-^^^^ 


Hn 


;■( 

H 

'i- 
;  1  J 


ih  f! 


'■''■■ 


lill! 


i^;. 


CHAPTER  V 


"  Once  an 
Engltshmin 
Always  an 
Englishman  * 


Relation 
of  Knglish 
Ijw  to 

Colonies 


FURTHER   COLONIAL   PRECEDENTS 

An  examination  of  the  various  charters  of  the  plantations  which  became, 
in  the  course  of  time,  the  thirteen  United  States  of  America,  discloses  that, 
with  the  single  exception  of  Pennsylvania  —  which,  in  fact,  however,  was  not 
an  exception  —  they  contained  the  express  declaration  that  the  colonists  and 
their  children  inhabiting  them  were  to  be  deemed  natural  born  British  subjects, 
and  that,  as  such,  they  should  enjoy  all  the  privileges  and  immunities  thereof. 
We  should  expect  this  to  l)e  so.  even  although  it  were  not  expressly  stated, 
as  the  doctrine  of  indelible  allegiance  was  then,  and  for  many  years  thereafter, 
the  cardinal  principle  of  English  law.  shortly  stnte<l  in  the  phrase  with  which 
we  of  the  present  day  are  familiar,  "  Once  an  Englishman,  always  an  English- 
:nnn :  "  from  which  it  would  seem  to  follow  that  such  an  one.  owing  the 
duties  of  an  Englishman,  would  likewise  possess  all  his  rights  and  privileges. 

It  was,  however,  foreseen  that  the  new  and  unknown  conditions  of  the 
new  and  unknown  world  to  which  the  colonists  were  transplanted  and  in 
which  they  took  root,  would  re(|uire  laws  fitted  to  the  new  environment ;  but, 
being  Englishmen,  subordinated  to  the  duties  and  possessing  the  rights 
thereof,  it  was  provided,  as  an  examination  of  the  charter  discloses,  that  such 
rules  and  regulations  as  they  might  frame  should,  negatively  expressed  since 
it  was  impossible  to  state  positively  their  content,  not  be  contrary  or  repugnant 
to  or  inconsistent  with  the  laws  of  England. 

We  should  expect  that  the  settlers  would  assume  the  rights  of  English- 
men without  giving  the  subject  much  thought,  that  they  would  think  less  of 
their  duties  and  be  inclined  to  test  their  legality  and  to  question  their  ap- 
plicability, even  if  they  should  be  found  to  be  grounded  in  the  common  or 
statute  law  of  the  old  country.  Especially  we  should  expect  the  colonists  to 
appeal  to  the  common  and  statutory  law  of  En-land  guaranteeing  the  privi- 
leges of  i:nglishmen  if  the  mother  country  should  attempt  to  deprive  them  of 
the  rights  and  privileges  of  Englishmen  guaranteed  to  them  by  the  common 
law  and  by  statutes  passed  before  the  settlement  of  the  colonies.  These 
they  could  properly  claim  to  carry  with  them,  ami  they  could  not  unreason- 
ably claim  the  benefits  of  statutes  passed  after  the  settlement  of  the  colonies 
giving  Englishmen  at  home  greater  rights  than  they  possessed  at  the  time 
of  the  exodus  of  the  settlers. 

90 


FURTHER   COLONIAL   PRECEDENTS 


91 


lllhlf  nl 

liKoverjr 


In  expressing  an  opinion  on  this  matter,  it  is  important  to  I)ear  in  mind 
the  situation  of  the  New  World  when  the  colonies  were  planted,  for  if  tlic 
territories  parcelled  out  to  companies  and  forming  the  colonies  of  the  new 
world  should  be  considered  as  conquered  or  as  ceded  territories,  the  laws  there 
obtaining  at  the  time  of  such  cession  or  conquest,  unless  cliani,'ed  f)y  the  new 
sovereign,  would  obtain  and  continue  in  force  unless  in     tisistcnt  with  the 
political,  religious  and  moral  ideals  of  the  new  master.     W  hereas,  if  these  ter- 
ritories were  to  be  regarded  as  vacant  lands,  subject  to  discovery  and  occupa- 
tion  by  Englishmen,  there  would  be  no  laws  by  which  settlers  could  \ye  gov- 
emed  other  than  those  which  they  carried  with  them  as  Englishmen.     Under 
the  first  theory,  the  common  law  would  not  follow  the  settler  but  would  have 
to  be  e-xtended  to  the  territories  by  express  ac. ;  under  the  second,  the  common 
law  accompanied  the  settler  and  did  not  need  to  be  extended  to  the  territories. 
Sir  William  Blackstone,  whose  Commentaries  appeared  on  the  eve  of  the 
Revolution  and  whose  opinions  had  great  weight  with  the  colonists,  was 
mclined  to  the  opinion  that  the  territories  of  the  New  World  were  properly 
to  l)e  regarded  as  acquired  by  conquest  or  treaty,  saying  expressly  that  "  Our 
American  plantations  are  principally  of  this  latter  sort,  being  obtained  in 
the  last  century  either  by  right  of  conquest  and  driving  out  the  natives  (with 
what  natural  justice  I  shall  not  at  present  enquire),  or  bv  treaties      And 
therefore  the  common  law  of  England,  as  such,  has  no  allowance  or  authcjrity 
there;  they  being  no  part  of  the  mother  country,  but  distinct  (though  depend- 
ent) dominions."  • 

If  the  facts  be  as  alleged  by  the  illustrious  commentator,  his  conclusions  P'"""'""' 
tollow  as  a  matter  of  course,  but  it  does  not  appear  that  any  of  the  territory 
claimed  by  (ircat  Britain,  and  out  of  which  the  Aniencanplantations  were 
formed,  was  conquered  territory.  Is'ew  York,  conquered  from  the  Dutch, 
it  may  be  said,  was  ceded  by  treaty,  but  the  conciuc>t  and  the  treaty  were 
regarded  merely  as  removing  the  obstacles  to  and  as  confirming  the  English 
claim  based  upon  discovery.  It  is  believed,  therefore,  that  Blackstone's  state- 
ment lacks  the  premises  without  which  it  can  not  l*  supported,  and  the  theory 
which  obtained  in  colonial  times,  and  the  theory  in  accord  with  the  facts,  was 
clearly  and  unequivocally  stated  by  Chief  Justice  Marshall  in  his  masterly 
opinion  in  Johnson  v.  M'Intosh  (8  W'heaton.  543),  decided  in  18J3.  in  which 
that  eminent  jurist,  after  a  survey  of  the  discovery  and  settlement  of  the 
New  World,  held  that  the  title  of  European  nations  was  acquired  by  dis- 
covery, recognizing  in  the  native  Indians  a  right  to  possession  but  nut  to 
tnvnership  of  the  land,  which  passed  to  the  discoverer  upon  discovery  and 
subject  to  appropriation  by  the  discoverer. 

lof''^    ^'"''""    ^'*'^'"*°"*'    Commentaries    on    the    Lares    of    England,    1765,    Vol    1, 


If    \ 


■»:,i 


111 
■III 


92  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


Rl(hl>  of 
Ititciivcry  tht 
True  U%au 


Blankard 
V.  (iaIJr 


Looking  upon  the  ttrritory  as  acquired  hy  rliscovcry  and  not  by  conquest 
or  cession,  the  second  theory  is  to  be  accepte<l  as  true  in  fact,  and  an  authority 
or  two  need  only  lie  cited  in  order  to  make  dear  that  the  common  law  of  Eng- 
land and  the  statutes  in  force  at  that  time  followed  the  colonists.  This  ques- 
tion arose  in  the  case  of  Blankard  v.  GaUy  (2  Salkeld,  411 ;  4  Modern,  222). 
decided  hy  Lord  Chief  Justice  Holt  in  1693. 

From  the  facts  in  this  case  it  appeared  that  the  defendant  purchased  the 
office  of  provost  marshal  general  in  Jamaica,  relating  to  the  administration  of 
justice  in  that  island,  and  that  he  gave  Ixinds  for  the  purchase  price  of  the 
office.  In  an  action  of  debt  upon  the  Iwnd.  the  defendant  pleaded  the  statute 
of  Edward  \I  against  buying  offices  concerning  the  administration  of  justice, 
that  the  statute  applied  to  the  isl.iiid.  and  that  therefore  the  condition  upon 
which  the  Iwnd  was  gi\en  was  illegal  and  void.  In  reply  to  this  contention, 
the  j)laintiff  stated  that  Jamaica  was  an  island  Iwyond  the  seas,  conquered  from 
the  Indians  and  Spaniards  in  the  time  of  Oueen  Elizalieth,  and  that  the  in- 
habitants thereof  were  governed  by  their  own  laws  and  not  by  the  laws  of 
England.  To  this  the  defendant  rejoined  that,  Ik- fore  the  conciuest,  they  were 
indeed  governed  by  their  own  laws,  but  since  then  by  the  laws  of  England, 
On  k'half  of  the  plaintiff  Shower  argued,  in  terms  that  support  the  claims  of 
the  colonists  at  a  later  date,  that  "  on  a  judgment  in  Jamaica,  no  w  rit  of 
error  lies  here,  but  only  on  appeal  to  the  Council ;  and  as  thev  are  not  repre- 
sented in  our  parliament,  so  they  are  not  l)ound  by  our  statutes,  unless 
specially  named."  remberton.  for  the  (lefen<lant.  contended  "  that  by  the 
con(|ucst  of  a  nation,  its  lil)erties.  rights,  and  properties  are  quite  lost:  that  by 
consequence  their  laws  are  lost  too.  for  the  law  is  but  the  rule  and  guard 
of  the  other:  those  that  conquer,  cannot  by  their  victory  Io.se  their  laws,  and 
become  .subject  to  others."  Chief  Justice  Holt,  apparently  delivering  the 
unanimous  opinion  of  his  brethren,  drew  the  distinction  between  the  settle- 
ment f)t  an  uninhabited  country  and  of  a  country  acquired  by  conquest  or  ces- 
sion. On  the  first  point  he  is  made  to  say  in  the  Salkeld  report  that  "  In  case 
of  an  uninbaliitcd  cm-ntry  new'y  found  out  by  English  subjects,  all  laws  in 
force  in  England  are  in  force  there:  "  on  the  second  fwint  that.  "  Jamaica  being 
conquered,  and  not  pleaded  to  Iw  parcel  of  the  kingdom  of  England,  but  part  of 
the  posse^'iions  and  revenue  of  the  Crown  of  Enrjland,  the  laws  of 
England  did  not  take  place  there,  until  declared  so  by  the  conqueror  or  his 
successors.  .  .  .  That  it  was  impossible  the  laws  of  this  nation,  by  mere 
con(|iiest.  without  more,  should  take  place  in  a  conquered  country:  liecause.  for 
a  time,  there  miT->t  want  officers,  without  which  our  laws  can  have  no  force: 
That  if  our  law  did  take  place,  yet  they  in  Jamaica  having  power  to  make  new 
laws,  our  general  laws  may  l)c  altered  by  theirs  in  particulars."  In  another 
account  of  the  same  case  (4  Modern,  222),  the  court  is  reported  to  have  .said. 


rUITIIIR  COUININL   I'KECEDKNTS 


93 


ed 
nc 

-nt 
lie 

ere 

a-- 

:  itii;i- 

f  ai' 


Ami  therefore  it  was  held,  that  Jamaica  was  not  Kovemed  bv  the  laws  of 
hngland  afUT  the  con.|ues,  thereof,  till  new  laws  were  niade:"f..r  thev  had 
iKMthcr  >herm  or  counties;  thev  were  only  an  assen.l.lv  of  pe.^ple  whiJh  are 
not  U.iind  l.v  our  laws,  unless  particularly  nu-nti..ned.-  JudRment  was 
acconhuRlv  entere<l  for  the  plaintiff.  Ix^cause.  lH;in«  a  con<|uered  country  and 
not  a  parcel  of  the  kiuRdom  of  KnRland  lu.t  a  part  of  the  ,Kissessions  of  the 
Crown,  the  laws  of  KnK'land  did  not  apply  unless  expressly  extended  ' 

This  case,  xvhich  may  justly  k-  called  the  lea.linR  one,  is  of  very  ^reat  im- 
portance, as  ,t  IS  klieved  to  state  accurately  the  English  law  on  the  subject, 
and  in  accord  with   the  law  of   nations.     L.K.kc.l  at   solely    from  the   Hrst 
standpoint,  it  will  Ix:  observed  that  it  draws  a  distinction  between  th 
of  Lngland.  on  the  one  hand,  in  which  the  common  and  statute  la 
as  of  course;  and  the  possessions  of  the  Crown,  or.  as  Sir  William 
puts  It.  d-K-ndent  dominions.     For  the  kiuKdom  oi"  Kngland    the  ' 
lefiislated.  and  i»s  act  bound   Mnglish   subjects   within  the   kin  " 
dominions  necessarily  required  law.  regulation  and  supervisi.m.  an,i 
bound  l.y  act  of  Parliament  specifically  mentioning  and  applying  to  t 
much  as  the  act  of  I'arliament  was  the  act  of  the  Crown. 'the  lori 
and  temporal  and  the  House  of  Commons,  that  is  to  say.  of  the  sup- 
'ne  authority  of  Great  Hritain.     In  the  absence  of' such  a  lep- 
->  King  himself  in  council  could  and  did  legislate  for  the  terntn,  ,es  .uhu-, 
J  the  Crown,  but  he  did  so  by         „-,  „f  prerogatiye.  which       .il,!  „„t    .. 
a,ntrary  to  but  must  be  in  ace,,,,,  •),  ,he  law  of  the  Ian.      mcl-lin. 

therein  acts  of  I'arliament.     lie  miglu.  .yer.  <liyest  himseli        ,!,e  r^^h^ 

Nfalil^r'of'oK  Ko;ir.,'"?:n,I::  •'""  "'""^^"''^  «umn,arized  an,l  s.a.e.l  bv  .         .^p^   „, 
.  .   .    ,.     J    An.,iniiin,,..  2  reire  \Villi.im«.  7.\  .Ici.lcl   in    17'' 

l.y  the  1..WS  of    |-.„>.|an,l.-  \  c.in,|„crc<l  counirv  to  Ik;  Kuvenicd  l,v   sm 

neror  a,ll  ,„,p„5e :  hn.  „„.,l  the  >nn,|ncror  wives  them'new    aw.    .he      , 
hy  lh,-,r  own  laws,  nnless  where  the-e  laws  are  contrarv  to  the  laws     f    i   .1 
Memnramhini,  9|h  of  A„K„st  1722.  it  was  sai.l  l.v  the  Master  of    hV  K, 

.hc,„.  a.,H  therefore  such   new   fo,„M  cn„„trv        to  h"  ^merned  h?  tu"^^^/",   \^.- " 

mmmmsssmmSh 

,h,^'"^'i    ^^^"'  '^*"  'i""*  °-   ■•"«'■•'""'  cnnqners  a  roi.ntrv.  it  is  a  different  considoritinn  •  f.  - 
there  the  conqueror,  by  .saving  ,he  lives  of  ,he  people  conqnered.  cains  a  ri"h       ,7 ,,  on.. 
m^such  people;  m  consequence  of  winch  he  may  impose  npon  ihenrvvh.a,  Ia„rhc7:i;i;,;s. 

a,Jrfl'y"*i^  "T'^n'^u'''./'?"  •">■  '^'  <-0"n"erinK  prince,  the  laws  and  cnstoms  of  the  con- 
See  the  case  of  Blankani  v.  Caldy  (2  SalK..  411  ). 


o  be  (; 

^s  ,1^  th 

t.i  he  K- 

or  totalli 

■lis  to  hax 

in  coiMiii! 


It 


Law  of 

I  ..ll..«r'i 
Culuniiu 


'H 


,j 


i!?^ 


!■.. 


I   *   |l 


'I 


-lU 


94 


rut   LNUEU  slAlts:    a   M11>V    IV    IMKMNAIIO.VAL  l>K<-.ANIZA11ti.V 


to  exercise  his  prerogative,  a*  held  in  the  leatlinu  cane  of  Campbell  v.  Hall 
(Covvper  204),  decidetl  by  the  Court  of  KinRS  Bench  in  1774.  at  the  ver/ 
eve  of  the  Revolution. 

By  the  treaty  of  176.1  lietween  France  and  Great  Britain  the  former  crded 
to  the  latter  country  the  Mand  of  (Jrenada,  which  had  lieen  coni|uercd  by 
British  arms.  By  the  King's  priH-Lmation  of  Octolier  7.  176J.  the  governor 
of  the  colony  was  authorized  and  re(|uired  to  call  a  general  assembly  in  the 
manner  and  form  use«l  in  the  other  colonies  and  provinces  of  .\inerica,  which 
assembly,  together  with  the  council  and  governor,  was  authorized,  as  stated  by 
Lord  Mansfield  in  delivering  the  unanimous  opinion  of  the  court.  "  to  make, 
constitute,  and  ortlain  laws,  statutes,  and  ordinances,  for  the  public  peace,  wel- 
f.nrc,  and  good  government  of  onr  said  colonies  and  the  inhabitants  thereof,  as 
near  as  may  lie  agreeable  to  the  laws  of  F.ngland,  and  under  such  regulations 
and  restrictions,  as  are  use<l  in  our  other  colonies."  On  .April  0.  1764,  by  let- 
ters patent  under  the  great  seal,  the  King  app<iinte<l  General  .Melville  governor 
"  with  a  jwwer  to  sununon  an  assembly  as  soon  as  the  state  and  circumstances 
of  the  island  would  admit,  and  to  make  laws  with  consent  of  the  governor 
and  ctuuicil,  w  ith  reference  to  the  manner  of  the  other  a  '  'les  of  the  kings 
provinces  in  .America."  The  governor,  thus  commissionc  arrived  in  Gren- 
ada n?i  Decenik-r  14,  1764.  and  liefore  the  end  of  the  succeeding  year  an  as- 
semblv  actually  met  in  the  island. 

But  lieforc  the  Governor,  commissioned  on  the  9th  of  .April.  1764,  arrived 
in  the  island,  letters  patent  under  the  great  seal  were  issued  on  July  JO,  1764. 
laying  a  duty  or  imiMist  of  'lur  and  a  half  per  cent  on  certain  commodities 
grown,  produced,  and  e.viKirted  from  the  island  "  in  lieu  of  all  customs  and 
imp«)rt  duties,  hitherto  collected  upon  goods  imported  and  exi)orte<l  into  and 
out  of  the  said  island,  under  the  authority  of  his  most  Christian  Majesty." 
(Inc  Campbell,  a  British  subject,  paid  this  duty  to  one  Hall,  a  collector  of  his 
Majesty's  customs,  and  an  action  of  money  had  and  received  was  brought  by 
Canipk'll  against  Hall  on  the  ground  "that  the  money  was  paiti  to  the  de- 
fendant without  any  consideration:  the  duty,  for  which,  anil  in  respect  of 
which  he  received  it,  not  having  l)een  iniposc<l  by  lawful  or  sufficient  authority 
to  warrant  the  same."  Judgment  was  entered  for  the  plaintiff  on  the  ground, 
among  others,  that,  having  in  the  proper  e.xercise  of  his  prerogative  created 
an  assenil)Iy  in  (irenada.  with  power  to  rai.se  revenue  and  to  make  laws  with 
the  consent  of  the  council  and  governor,  the  King  had  divested  himself  of 
the  power  to  legislate,  as  he  otherwise  could  ha\e  done  for  this  dependent 
dominion,  now  forming  a  part  of  the  kingdom  of  Great  I'.ritain.  and  that  legis- 
lation to  bind  the  colony  should  henceforth  be  by  act  of  I'arliament,  not  by  the 
prerogative  of  the  King  in  Council. 

It  is  interesting  to  note  in  this  connection,  although  dwelt  upon  iii  another 


rURTIlIB  COLONIAL  rRICKOINTt 


9S 


place,  that  the  court  con»iclcred  the  ciuestion  of  an  excess  of  power  in  so  far 
as  the  riRhts  of  individuals  was  concerned  as  a  judicial  question,  since  the  let- 
ters patent  imposing  the  duty  were  in  excess  of  the  power  properly  lodged 
in  the  King,  thus  furnishing  a  precedent  whereof  the  framers  of  the  Consti- 
tution availed  themselves  for  setting  aside  acts  of  authority  inconsistent  with 
the  fundamental  law. 

After  summarizing  the  law  as  laid  down  in  Cahnn's  Case  and  in  Blankard 
V.  Galdy.  already  cited  (aithoiiRh  Lord  Mansfield  did  not  refer  in  express 
terms  to  the  latter  case),  his  Lordship  said: 

That  if  the  king  (and  when  I  say  the  king.  I  always  mean  the  kine  with- 
om  the  concurrence  .f  parliament.)  has  a  ,«wer  to  alter  the  old  an<f  to  n^ 
roduce  new  Uws  in  a  conquered  .ountry.  this  legislation  being  subordinate 
that  is  subordinate  to  his  own  authority  in  parliament,  he  cannot  makrany 
new  change  contrary  to  fundamental  principles:  he  cannot  exempt  an Tn'^ 
habitant  from  that  particular  dominion;  as  for  instance,  from  the  laws  of 
K.'u"'"  T  I  '  '**''!"  ".^  parliament,  or  give  him  privileges  exclusive  of 
his  other  subjects;  and  so  in  many  other  instances  which  might  be  put 

In  support  of  his  views,  he  invoked  two  authorities,  who.  at  the  time  of 
giving  their  opinions,  were  respectively  Attorney  and  Solicitor  General: 


/- J  .  !"'J'''LJI^\^^''  assembly  of  Jamaica  being 
ferred  to  Sir  Phillip  \orke  and  Sir  Clement  \Ve.irire 
be  done  if  the  assembly  should  obstinately  continue  to 
supplies.  They  reported  thus:  "  If  famaica  was  sti 
a  conquered  island,  the  king  had  a  right  to  levy  taxes 
but  If  It  was  to  be  considered  in  the  same  light  as  the 
could  be  imposed  on  the  inhabitants  but  by  an  assembly 
act  of  parliament." 


refractory,  it  was  re- 
to  kn  w  '"  what  could 
withhold  all  the  usual 
ill  to  be  considered  as 
upon  the  inhabit,ints ; 
other  colonies,  no  tax 
of  the  island,  or  by  an 


Continuing  to  draw  for  illustration  upon  the  island  of  Jamaica,  with  whose 
his  ory  Lord  Mansfield  was  familiar.- as  he  had  examined  it  and  had  him- 
self, as  Attorney  General,  given  an  opinion  to  the  Crown  on  the  matter  in 
hand.- he  proceeded  to  say  that  "  King  Charles  2d  by  proclamation  invited 
settlers  there,  he  ma.le  grants  of  lands:  he  appointed  at  first  a  governor  and 
council  only:  afterwards  he  granted  a  commission  to  the  governor  to  call  an 
assembly.       The  conclusions  to  be  drawn  from  these  premises  he  thus  stated : 

The  constitution  of  every  province,  immediately  under  the  king,  has  arisen 
in  the  same  mar, cr;  not  from  grants,  but  from  commissions  to  call  asseni- 
o5t  InmViw;  ""Tk"  fi"'^  Sp-iniards  having  left  the  island  or  been  driven 
out  J.imaKa  fr  n  the  first  settling  was  an  English  colonv.  who  under  the 
authority  of  the  King  planted  a  vacant  island,  belonging  to  him  in  right  of  his 

And  from  this  state  of  affairs  he  draws  the  necessary  conclusion  that: 


li 


ii 

I '   II 


1^ 


1 1 


;    -  il  Jl 


^  -t  ill 


m' 


96 


THE   UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


A  maxim  of  constitutional  law  as  declared  by  all  the  judges  in  Calvin's 
Case  and  which  two  such  men,  in  modern  times,  as  Sir  Philip  Yorke  and  Sir 
Clement  Wearge,  took  for  granted,  will  require  some  authorities  to  shake. 

But,  in  addition  to  the  authority  of  these  two  distinguished  lawyers,  Lord 
Mansfield  stated  positively  that  there  was  no  authority  for  the  contrary  view, 
saying  that,  "  on  the  other  side,  no  book,  no  saying,  no  opinion  has  been 
cited :  no  instance  in  any  period  of  history  produced,  where  a  doubt  had  been 
raised  concerning  it;"  and  "  that  More  the  letters  patent  of  the  20th  July, 
1764,  the  king  had  precluded  himself  from  the  exercise  of  a  legislative 
authority  over  the  island  of  Grenada.  .  .  .  That  hy  the  two  proclamations 
and  the  commission  to  Governor  Melville,  the  king  had  immediately  and  irre- 
coverably granted  to  all  who  were  or  should  become  inhabitants,  or  who  had. 
or  should  actjuire  property  in  the  island  of  Grenada,  or  more  generally  to  all 
whom  it  might  concern,  that  the  subordinate  legislation  over  the  island  should 
be  exercised  by  an  assembly  with  the  consent  of  the  governor  and  council,  in 
like  manner  as  the  other  islands  belonging  to  the  king."  .Mthough,  before 
July  .?0,  1764.  the  king  might  ha\e  legislated,  after  that  date  His  Lordship 
said :  "  To  use  the  words  of  Sir  Philip  Yorke  and  Sir  Clement  Wearge,  '  it 
can  only  now  be  done,  by  the  assembly  of  the  island,  or  by  an  act  of  the  parlia- 
ment of  Great  P>ritain.'  " 

it  may,  however,  be  advisable,  in  this  connection,  to  invoke  again  the 
authority  of  the  .same  distinguished  .\ttorney  (k'neral,  with  whom  a  greater 
even  than  Wearge  concurred,  as  it  regards  not  merely  the  subject  in  hand  but 
introduces  and  decides  a  diflferent  and  a  related  phase  of  the  subject  which  it  is 
necessary  to  understand.  In  connection  with  the  petition  of  the  plaintiff  in 
U'inthrop  v.  l.cchmcrc,  decided  by  the  Privy  Council  in  1728,  the  following 
questions  among  others  arose  :  "  whether  the  said  colony  |  of  Connecticut]  have 
thereby  any  jMiwer  vested  in  them  of  m.nking  laws  which  affect  property,  or 
whether  that  power  is  not  confined  to  the  making  of  by-laws  only,  and  whether 
if  they  have  not  the  power  of  making  laws  affecting  property,  they  have  not 
forfeited  their  charter  by  jjassing  such  laws."  To  this  series  of  (juestions  Sir 
Philip  \'urke  and  Sir  Charles  Talbot,  respectively  Attorney  and  Solicitor  Gen- 
eral, replied,  under  date  of  .\ugust  1,  1730,  "we  have  considered  the  said 
charter  and  memorial,  and  are  of  opinion,  that  by  the  said  charter,  the  general 
asseml)ly  of  the  said  province  have  a  power  of  making  laws  which  affect  proi)- 
erty:  but  it  is  a  necessary  qualification  of  all  such  laws,  that  they  be  reasonable 
in  themselves  and  not  contrary  to  the  laws  of  I'jigland;  and  if  any  laws  ha\e 
been  there  made,  repugnant  to  the  laws  of  England,  they  are  absolutely  null 
and  void."  ' 

In  an  earlier  opinion,  rendered  to  the  Lords  Commissioners  of  Trade  and 


•  GeOFRe  Clialmcrs,  Ofiniom  of  F.minent  LaZK-y:rs  on  rarious  I'oinis 
prudence,  American  eil.,  185S,  pp.  .?41-2. 


<f  English  Juris- 


FLKTllEK   COLONIAL  I'UECEDENTS 


97 


Plantations,  Richard  West,  then  Counsel  to  the  Board  and  later  Lord  Chan- 
rt-IJor  of  Ireland,  stated,  it  is  believed,  the  conclusion  to  be  drawn  from  the 
wording  of  the  charters,  the  holdings  of  the  courts,  and  the  opinions  of  the  At- 
torneys and  Solicitors  General,  and  within  the  compass  of  a  single  sentence, 
that  "  The  common  law  of  England  is  the  common  law  oi  the  plantations,  and 
all  statutes,  in  affirmance  of  the  common  law.  passed  in  England,  antecedent 
to  the  settlement  of  any  colony,  are  in  force  in  that  colony,  unless  there  is 
some  private  act  to  the  contrary ;  though  no  statutes  made  since  those  settle- 
ments are  there  in  force,  unless  the  colonies  are  particularly  mentioned."  ' 

It  would  be  foreign  to  the  present  purpose  to  attempt  to  show  in  this  Colonial 
place  the  sense  in  which  the  colonists  understood  and  exercised  their  right  to  """"'" 
make  laws.     Suffice  it  to  say  that  new  conditions  produced  new  laws,  and 
although  each  colony  claimed  the  benefit  of  the  common  law  when  to  its  ad- 
vantage, it  legislated  and  insisted  upon  its  right  to  legislate  in  its  own  interest 
in  the  absence  of  provisions  of  the  customary  and  statute  law,  and  at  times  in 
the  very  teeth  of  either  or  both.     Rut.  as  will  presently  appear,  laws  in  ex- 
cess of  the  charter  were  either  ncratived  by  the  governor  in  council,  the  active 
and  vigilant  miniature  of  the  King  in  Council,  or  by  the  King  himstlf  in 
Council  if  the  Governor  had  inadvertently  approved  a  statute  which  his  royal 
master  was  advised  to  disapprove,  or  by  a  judicial  proceeding,  by  the  Lords 
of  Appeal  in  the  Council,  reversing  a  colonial  judgment  based  upon  a  local  law 
contrary  to  the  laws  of  the  realm,  as  in  the  case  of  IVinthrop  v.  Lcchmere. 
The  result  seems  to  \k,  however,  that  in  every  colon v  customs  grew  up.  laws 
were  passed,  which  created  what  might  be  called  a  local  system,  reasonable  in 
the  opinion  of  the  colonies  and  not  opposed  to  the  law  of  the  mother  country 
as  it  should  be  interpreted  in  the  circumstances. 

In  a  letter  of  ex-President  Jefferson  dated  Septemljer  27,  1810,  and  ad- 
dressed to  Allien  Gallatin,  then  Secretary  of  the  Treasury  in  James  Madison's 
administration,  the  result  was  stated  with  respect  to  New  England  in  terms 
which  were  applicable  to  the  colonies  as  a  whole,  considering  the  individual 
conditions  of  each : 


iTii 


■m 

'ill 


:*  fl 
lil 


\\  as  there  ever  a  profound  common  lawvcr  known  in  one  of  the  Fa^torn 
Mates .  1  here  never  was.  nor  never  can  be  one  from  those  States  The 
basis  of  their  law  is  neither  common  nor  civil;  it  is  an  original,  if  anv  om- 
poiin.l  can  so  l)e  called.  Its  foundation  seems  to  have  been  laid  in  tlu-  spirit 
and  principles  of  Jewish  law.  incorporated  with  some  words  and  plira-cs  of 
common  law  and  an  abundance  of  notions  of  their  own.  This  makes  an 
(imahjain  ski  (/rucris,  .  .  .' 

And  in  a  letter  written  two  years  later  to  John  Tyler,  Judge  of  the  United 

Uh!H.,  p.  511. 

'll-rili,,,,,  nf  Thomas  Jeff.-rsnH,  H.  A   Washington  ed.,  186!,  \'o!.  v.  p.  530. 


^'i: 


98 


THE   UNITED  STATES:  A   STUDY  IN   INTERNATIONAL  ORGANIZATION 


I  :U' 


States  District  Court  of  Virginia,  and  father  of  the  future  President,  Mr. 
Jefferson  said : 

I  deride  with  you  the  ordinary  doctrine,  that  we  brought  with  us  from 
England  the  common  law  rights.  This  narrow  notion  was  a  favorite  in  the 
first  moment  of  rallying  to  our  rights  against  Great  Britain.  But  it  was  that 
of  men  who  felt  their  rights  before  they  had  thought  of  their  explanation. 
The  truth  is,  that  we  brought  with  us  the  rights  of  men  —  of  expatriated  men. 
On  our  arrival  here,  the  question  would  at  once  arise,  by  what  law  will  we 
govern  ourselves  ?  The  resolution  seems  to  have  been,  by  that  system  with 
which  we  are  familiar,  to  be  altered  by  ourselves  occasionally,  and  adapted 
to  our  new  situation.  .  .  .  But  the  state  of  the  English  law,  at  the  date  of 
our  emigration,  constituted  the  system  adopted  here.' 

Mr.  Jefferson's  remark  seems  to  !»  in  substantial  accord  with  history.  As 
a  matter  of  fact  the  colonists  were  not  familiar  with  the  common  or  statutory 
law  in  force  at  the  moment  of  tl.-ir  departure  from  the  mother  countr\-. 
They  were  not  lawyers;  the  Bar  »  not  held  in  honor  until  many  years  later; 
there  were  very  few  lx>oks  of  authority  in  which  they  could  find  the  com- 
mon or  statute  law  during  the  course  of  the  17th  century,  and  still  fewer  of 
those  books  and  the  reports  containing  the  decisions  of  the  English  courts 
interpreting  the  common  and  statutory  law  made  their  way  to  the  colonies. 
It  was  only  on  the  eve  of  the  Revolution,  when  the  relations  between  the  col- 
onies had  become  closer  and  the  advocates  of  colonial  rights  and  privileges 
found  the  common  Iiw  as  an  arsenal,  from  which  they  could  seize  weapons  to 
he  used  in  their  defense,  that,  in  Jefferson's  phrase.  "  they  thought  of  their 
explanation."  Thus,  it  is  stated  in  the  celebrated  Declaration  of  Resolves  of 
the  First  Continental  Congress,  dated  October  14,  1774: 

That  our  ancestors,  who  first  settled  these  colonies,  were  at  the  time  of 
their  emigration  from  the  mother  countrj-,  entitled  to  all  the  rights  liberties 
and  immunities  of  free  and  natural-born  subjects,  within  the  realm  of  Eng- 
land. ° 

That  by  such  emigration  they  by  no  means  forfeited,  surrendered  or  lost 
anv  of  those  rights,  but  that  they  were,  and  their  descendants  now  are  en- 
titled to  the  exercise  and  enjoyment  of  all  such  <.f  them,  as  their  local' and 
other  circumstances  enable  them  to  exercise  and  enjoy. 

That  the  respective  colonies  are  entitled  to  the  common  law  of  England 
and  more  especially  to  the  great  and  inestimable  privilege  of  being  tried  by 
their  peers  of  the  vicinage,  according  to  the  course  of  that  law 

That  they  are  entiiulcd  to  the  benefit  of  such  of  the  English  statutes  as  ex- 
isted at  the  time  of  their  colonization ;  and  which  thev  have,  bv  experience 
respectively  found  to  be  applicable  to  their  several  l(kal  and  other  circum- 
stances.'' 

It  is  Uie  most  familiar  of  maxims  that  no  man  can  be  a  judge  in  his  own 
case,  and  to  have  allowed  the  colonies  to  determine  for  themselves  whether 

^  I.y.>n  Gar.liner  Tyler.  Tlu-  Letters  and  Times  of  the  Tylers.  Vol.  i,  p.  265. 
'journals  of  the  C, >titm.:t<ial  Co f.'jr.-ss.  Va\.  i,  ^j>.  fA-9,  ',  v-  t^J. 


Crown 


FURTHER  COLONIAL   PRECEDENTS  99 

Aeir  ?.?  °^  '^*^f'^*'°";^-^[<=  ^•'»»>in  t^e  charter  or  ^rant  would  have  placed 
their  future  wholly  w.th.n  their  own  hands,  and  would  have  amounted  to  a  re- 

c3d  rt  °  V'  'T'- ""''''  ^"^^'"  '^^  '^^  "^'^'^  ^°  ^^-^  colonies  To  ha" 
Zhtlt  H.  '';  r"".''*^  "''''  '"  P^^^  "P°"  ^'^"^  questions  would  o 
might  have  been  fatal  to  the  colonies,  as  the  mother  conn  ry  mi^ht  fairly  be 

nTe:  :    Th^"'  t  '"'  °V"^^"^'°"^^-  "  '"'^^P-'  the'lawf  int  o'w^ 

,nJr.rf      t,         •  "^  ^'■"'"  '''"  '°"'^'"  ^^•'^''^'^  "^"her.  intent  on  its  own  """•""" 

IfT  i4°  1  T'""^''  '"  ''^  ^^^  ^^  •'  ^'^^•^^^^  the  other.  Vet  the  solu^i^n 
of  the  difficulty  by  Great  Britain  was.  if  not  free  from  fanlf   f.r  /        / 

abled  the  Ln.ted  States,  when  the  colonies  had  cut  adrift  and  set  up  for  tW 
selves,  to  meet  and  to  solve  the  difficulty  which  present  d  itself  nlT  T  u 
must  always  present  itself,  in  an  empire  with  sel  f-go^nTng  coo"  «  in  a  ^nbn 
of  States  conferring  upon  an  agent  the  exercise  of  large  sovere  gTpou"  rs 

the  oHginaTSrwhTh;l'7"T^'"  "' ''''  '^°^^"  "'^>-  ^  '^'"^^  'o  be  r„.....„ 

which  had  nmt  tit  f  °'  "^r^""'  "^^^  '^'^''"^^'  •''"^  "-^-ed.  and  """ 

wnicn  naa  not  in  the  course  of  time  been  vested  in  the  Parliament   or  in 

courts  of  justice,  provided,  however,  that  the  prerogatives  remantr^;,: 

e.lm      Th      ^        ''■""•  '"^°"-^'«'^"t  with  the  fundamental  laws  of  the 
realm.     These  prerogatives  the  king  e.xercise<l  in  his  Priw  Council  on  the 

trary  to  the  fundamental  constitution  of  the  kingdom  ^  '°"" 

In  so  far  as  the  exercise  of  these  prerogatives  had  not  been  granted  to  the 
colonies  they  remained  with  the  King  in  Council;  when  granted  "o  hi  ool 
omes  they  could  not  lawfully  be  exercised  by  the  King  in  Counc  as  he,,  by 
Lor,l  Mansfield  m  the  leading  case  of  Campbell  v  Hall  But  even  in  I 
ca^^s  t  e  King  in  Council  exercised  the  righ^of  super^Ln  nd  I  niir^' 
t  on  o  he  ,,e.  ^he  colonial  interpretation  might  differ  from  the  roT"  nd 
the  system  Income  one  of  inextricable  confusion.  The  Council  for  H,e  r.v 
enjment  ot   Foreign  Plantations  established  1,  Charles  l/::    ^^^^^  .., 

Traie  an  iT?"'  "'"'  "''  '"''''''•  '"°""  ''  ''''  ^ords  Commissioner   of   ''"'""' 
Trade  and  Plantations,  composed  of  great  dignitaries,  who  were  mem  Jrs  of 


HI 


i 


-jsioners 
of  Trade 
auil  i'lautations 


.^ 


100  THE   UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


CommittfC 
for  Hearing 
Appeals 


Thrte 
Kinds  of 
Appeals 
from 
1  olonial 
Courts 


the  Privy  Council,  and  of  some  persons  not  members,  but  added  to  the  Board  to 
secure  its  efficiency.  The  chief  puriwse  of  the  I^rds  Commissioners  was  to 
advance  the  trade  of  the  Kingdom  and  also  of  the  colonies,  and  in  so  doing,  the 
interests  of  the  empire  would  Ik?  advanced  —  although  the  chief  interest  was 
that  of  the  mother  country.  The  Lords  Commissioners  reptirted  to  the  King 
in  Council,  and,  upon  approval  of  their  recommendations,  appropriate  action 
was  taken  by  them.  They  recommended,  foi;  example,  instructions  to  be  sent 
to  the  Governors,  laws  to  lie  approved  of  or  to  be  vetoed,  and,  in  ca.se  of  dis- 
putes between  the  colonies  relating  particularly  to  boundaries,  they  suggested 
the  appointment  of  commissions  composed  of  members  from  adjoining  prov- 
inces, issued  instructions  to  the  commissioners,  and  recommended,  favorably, 
or  unfavorably,  their  awards  or  opinions  to  the  King  in  Council. 

For  nutters  of  a  judicial  nature,  there  existed  a  Committee  for  Hearing 
.\ppeals  from  the  Plantations,  which  appears  to  have  been  not  a  specially 
appointed  committee  of  the  council  but  to  have  been  composed  of  such  mem- 
bers of  the  council  who  attended  and  gave  their  attention  to  the  appeals.  This 
committee  inigi,,.  f  it  chose,  consider  and  determine  the  matter  itself,  or  re- 
fer it  for  investi!,Mtion  and  report  to  the  Lords  Commissioners  of  Trade  and 
Plantations,  whose  report  it  might  or  might  not  approve.  Its  action,  how- 
ever, was  submitted  to  the  Kinj,'  in  Council  who,  in  the  period  of  the  Stuarts, 
attended  with  more  or  less  regularity,  but  who,  in  the  time  of  the  Hanover- 
ians, appears  to  have  been  present  only  on  formal  occasions  and  to  have  given 
his  assent  to  the  recommendations  of  the  Council  without  taking  part  in  its 
proceedings. 

.Appeals  from  judgments  of  the  colonial  courts  might  be  of  three  kinds. 
First.  The  appeal  was  from  a  colonial  judgment,  in  which  the  appellant 
claimed  that  a  principle  of  law  was  wrongly  applied  because  of  ai.  irregularity 
in  procedure,  because  o*  prejudice  on  the  part  of  the  judge,  or  because  of  the 
misapplication  of  a  principle  of  law.  In  these  circumstances  the  appellant  aiil 
defendant  would  Ix;  heard  by  counsel,  either  by  the  Committee  for  Hearing  Ap- 
peals or  upon  reference  from  that  Iwdy  by  the  Lords  Commissioners  of  Trade 
and  Plantation,  and  proceedings  in  either  would  be  had  in  accordance  with 
Eiigli>h  justice.  If  the  case  were  referred  tu  the  Lords  Commissioners,  their 
recommendation  would  l)e  reported  to  the  Committee  for  Hearing  Appeals, 
which  could  api>rove  it  or  niuilify  it.  Whereupon  the  original  or  amend  d 
recommendation  was  referred  to  the  King  in  Council,  upon  whose  approval  it 
became  a  decree  of  the  King  in  Council  and  established  the  law  of  the  case. 
In  ordinary  cases  this  would  not  involve  the  setting  aside  of  a  colonial  statute. 
It  is  to  be  su()posed.  ami  it  was  the  fact,  that  colonies  did  not  relish  appeals 
from  the  decisions  of  their  ccjurts  and  were  indisposed  to  allow  appeals  from 
the  Governor  in  Council,  often  the  tinal  colonial  court  of  appeal.     But,  how- 


FURTHER  COLONIAL   PRECEDENTS 


101 


ever  reluctant  the  colonies  might  lie  to  allow  appeals  to  be  taken  to  the  King  in 
Council,  the  mother  country-  was  ine-.orable,  declaring  it  to  be  the  right  of 
every  English  subject  residing  within  the  colonies  to  appeal  to  the  King  in 
Council:  and  although  the  colonies  sought  to  prevent  appeals  which  they 
must  needs  permit  by  allowing  them  only  where  large  sums  were  involved  and 
where  security  was  given  by  the  appellant  for  costs  and  for  the  payment  of 
the  judgment  in  case  the  judgment  should  be  affirmed  on  appeal,  the  Privy 
Council  decided  upon  petition  of  the  appellant,  irrespective  of  the  amount 
mvolved,  whether  it  would  or  would  not  allow  the  appeal  in  the  interest  of 
justice  and  its  uniform  administration. 

Second.     It  might  happen,  however,  that  the  judgment  appealed  from  was 
ba.sed  npot.  the  statute  of  the  colony  claimed  to  be  contrary  or  repugnant  to  or 
mconsistent  with  the  laws  of  the  realm.    In  such  a  case  the  P:  ivv  Council  would 
perforce  examine  the  laws,  and.  if  it  found  them  to  be  as  alleged,  it  declared 
them  to  be  null,  void  and  oi  no  effect  and  reversed  the  decision  of  the  court 
based  upon  them.     In  certain  colonies,  more  especiallv  in  Connecticut  and 
Rhode  Island  (for  the  charter  of  Rhode  Island  was  similar  to  that  of  Con- 
necticut), the  repugnancy  of  colonial  legislation  to  the  laws  of  the  rtalm 
could  only  arise  in  a  ju.licial  proceeding  of  this  kind,  inasmuch  as  neither  of 
the.se  colonies  uas  required  to  submit  its  laws  to  the  mother  country  for  ap- 
proval or  di>a,.proval.     The  leading  case  on  this  point  is  that  of  irintliroh 
v.  Lcchmcrc.  which  will  Ik:  seen  to  be  a  direct  precedent  for  the  courts  of  the 
Lnited  States  in  declaring,  in  a  judicial  proceeding,  laws  of  the  United  States 
or  of  the  States,  contrary  to  the  Constitution,  to  he  null,  void  and  of  no  effect. 
Third.     A  dispute  might  exist  between  two  colonies,  as  in  the  case  of 
iKxindaries  ba.sed  upon  an  agreement  reduce.l  to  writing  and  in  a  form  to 
be  pas,sed  upon  by  the  courts,  interpreted,  an.l.  in  appropriate  cases,  specifically 
enforced  by  a  court  of  e<iuity.     This  was  the  case  with  the  celebrated  agree- 
ment of  1732  between  the  sons  of  William  Penn.  proprietors  of  Pennsvlvania 
on  the  one  hand,  and  Lord  Raltimore.  proprietor  of  Maryland,  on  the  other' 
regarding  the  Ijoundary  between  the  provinces.     In  such  a  case,  the  Court  of 
Chancery  having  jurisdiction  of  the  parties  who  resided  in  England  could  and 
actually  did  order  them  to  enforce  their  agreement,  although  it  affected  title 
to  avo  provinces  beyond  the  jurisdiction  of  the  Court  and  indeed  l^evond  the 
seas. 

In  disputes  l)etween  the  colonies  there  might  be  a  wrong  without  a  remedy 
unless  there  were  a  resort  to  a  common  authority,  for.  while  each  of  the  c  ' 
onies  was  equal  and  independent  of  the  others,  they  were  all  dependent  upon 
the  Crown.  Therefore,  in  a  justiciable  ciuestion.  whether  it  be  between  the 
colonies  or  .nhabu.mts  ..i  different  colonics,  resort  was  ha<l  to  the  King  in 
Council,  for  the  reasoiw  ,M,aHn!y  .VMvA  -n  the  petitiuu  dated  Julv  1".  1678  o< 


Precrdf nt  for 

the  Tower  of 
tlif  Supreme 
Cuiirt  i.ver 
LcRiiilatiirefl 


fi 

ml 


t  ■ 


Suit  of 
a  Citizen 
T.  a  State 


HoWtn 
and  Green 
Petition 


102  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

Randall  Holden  and  John  Green  in  behalf  of  themselves  and  of  his  Maj- 
estys  oppressed  Subjects  the  Inhabitants  of  the  Towne  of  Warwick  and  of 
other  adjacent  Haces  belonging  to  his  Majestys  Colony  of  Road  Isl'and  and 
Providence  Plantation  in  New-England.  Setting  forth  the  great  Miservs  and 
Calaniitys  they  have  undergone  as  well  from  the  Government  of  the  Massa- 
chusets.  As  hy  the  unjust  Proceedings  of  the  Commissioners  chosen  out  of 
the  Three  Lnited  Colonys  of  \ew  Plymouth,  Massachuset  and  Connecticut 
no*  only  in  granting  and  awarding  to  one  William  Harris  of  I'atuxet  the 
Lands  bought  and  improved  by  the  Petitioners  but  giving  him  grea*  Dam- 
ages notwithstanding  the  Testimony  of  one  Mr.  Williams  the  first  Indian 
Purchaser  of  those  Lands  and  other  Materiall  Witnesses  on  the  Petitioners 
behalf  as  by  the  Petition  more  at  large  appears.  .  .  .» 

The  petitioners,  however,  were  not  content  to  have  justice  done  in  their 
individual  cases.  They  put  the  ax  to  the  tree,  and  recommended  what  the 
framers  of  the  Constitution  of  the  States  did  a  century  subsequently,  not 
merely  for  \ew  England  hut  for  the  original  thirteen  States  and  all  others 
composing  the  more  perfect  Union  under  the  Constitution.  After  pray- 
ing that  "a  Stop  may  be  put  to  the  Proceedings  of  the  said  Commis- 
sioners." they  specifically  ask  "  that  for  determining  this  and  the  like  Differ- 
ences that  may  and  will  arise  between  Colonv  and  Colony,  and  for  avoyding 
chargahle  Appeals  from  those  remote  parts  His  Majesty  woiiUl  be  pleased 
to  settle  his  Royall  Authority  over  the  whole  country  of  New  England,  and 
erect  a  supreme  and  indifferent  Judicature  there." 

The  case  is  a  very  interesting  one  in  itself,  and  necessarily  makes  a  strong 
appeal  to  a  Xew  Englander,  inasmuch  as  it  reminds  him  of  the  New  England 
Confederation  establishetl  in  1643.  and  then  in  effect.  The  Commissioners 
thereof  appear  to  have  passed  adversely  upon  the  case  of  the  petitioners,  so 
much  to  their  annoyance  that  they  carried  their  appeal  to  the  Privy  Council  not 
only  m  their  own  l)ehalf,  but  in  behalf  of  the  other  inhabitants  of  the  town 
against  Massachusetts  and  the  Commissioners  of  the  Xew  England  Confed- 
eration, thus  involving  the  three  colonies  of  Massachusetts.  Plymouth  and 
Connecticut,  of  which  the  Confederation  was  then  formed. 

But  the  case  has  a  larger  interest  and  makes  an  appeal  to  Americans  with- 
out distinction,  for  it  seems  to  l.e  a  precedent  for  the  extension  of  the  judicial 
power  of  the  United  States  to  the  suit  of  a  citizen  of  a  State  against  another 
State  of  the  rKmencan  Union,  as  intimated  by  Chief  Justice  White,  in  deliver- 
mg  the  opinion  of  the  Supreme  Court  in  I'irginia  v.  West  Vir<jima  (^46  U 
S..  :,6^},  decided  in  1918.  Therefore,  the  facts  and  the  proceedings  of  this 
n*eresting  controversy  are  stated  somewhat  at  length  and  in  detail 

The  petition  of  Messrs.  Holden  and  Green.  "  Deputves  for  the  Towne  of 
\\arw.ck  and  Colony  in  Road  Island,"  represented  to  His  Majesty  in  council 
that  some  Persons  within  the  Corporation  of  the  Massachusetts  Bay  had 
^Acls  of  the  Prky  Council,  Colonial  Series.  J613-1680,  Vol.  i.  p.  785,  §  1224. 


FURTHER  COLONIAL   PRECEDENTS 


1Q3 


belonged  to  His  Majesty,  and  was  subject  to  the  j.iris.liction  of  Rhode  Island 
1  he  sa.d  pnnted  paper  in  question  was  read  at  the  board,  and  a  copy  thereof 
was  ordered  to  be  sent  to  the  agents  for  Massachusetts,  who  were  directed  to 
tend  two  days  later,  "to  shew  by  what  authority  or  Title  Simon  Brad- 
streete  Deputy  Governor,  or  other  Inhabitants  of  that  Colony  have  bv  a 
printed  I  aper  ca  led  an  Advertisement  dated  at  Hoston  the  30thof  July  last 
byd  Clayme  to  the  Land  of  Xarragansett  and  Xiantic  Cuuntreyes.  called  th^ 
Kings  iTovince.    ' 

From  the  record  of  the  Privy  Council  in  the  case,  dated  Deceml.er  13. 
1678  ,t  appears  that  the  agents  of  Massachusetts  complied  with  the  direction. 
an<l  declared     that  the  Government  of  the  Massachusetts  is  not  at  all  con^ 

TZt!r  ''Z^'T-  '"'"  u"'-'  .'°'"'  ^"•^^^•^'tants.  who  had  purchased  those 
Lands  from  the  Indyan  sachins." 

inhl'."";  II"  "'"•'"""-'  °^  ^^''"■'-  ""'''""  ^"''  ^'■""- '»  ^PP^"^  that  thev  had 
nhabited    he  region  in  question  for  above  forty  years;  that  the  sachem;  and 

Indians  of  .Xarragansett  had  voluntarily  submitted,  with  their  peoples  to 
he  government  of  his  late  Majesty.  Charles  I.  by  a  dee.I  dated  April  19  164^ 

that  the  purchases  made  in  1659  by  one  Major  Atherton  and  others  of  the 

Massachusetts  Colony  were  null  and  void,  and  were  declared  to  be  so  bv  Hi! 

Majesty  s  Commissioners  for  settling  the  Royal  authority  in  New  England. 

who  visited  Rhode  Island  in  1665.  and  who  ordered  the  purchasers  to  vacat 

the  lands,  and  declared  "  that  the  Magistrates  of  Rhode  Islan.l  should    xe  ! 

Zrr^^'cjTrV    ^T'""'  °'  '''  ^"''"'  '"  ^'^  ^•-'•agansett  Countrv!  by 

farhe^w!;:.  "'"^"^  ^  ^^^-^^  •  •  •  ^-'^  >-  -^^^^•->-  p'--  ^'-^  ^ 

Without  losing  ourselves  in  a  wilderness  of  detail  concerning  these  l)ound- 

ary  disputes   It  is  sufficient  to  sav  that  Connecticut  claimed  by  its  charter  of 

166  .  that  the  territory  in  question,  and  indeed  all  of  the  present  State  of 

Rhode  Islan<l.  as  far  east  as  the  Xarragansett  River,  "comonlv  called  Xorro- 

gancett  Ray.  where  the  said  River  falleth  into  the  Sea  ";  that  Rhode  Island 

by  virtue  of  its  charter  of  1663  claime.l  the  land  in  question  "  to  the  middle  o^ 

hannel  of  a  river  there,  commoi.ly  called  and  known  by  the  name  of  Pawca- 

tuck.    thus  making  of  that  river  the  eastern  boundary  of  Connecticut,  an.l  bv 

an  agreement  of  the  agents  of  Connecticut  and  Rho<Ie  Island,  who  secured  nei'r 

respective  charters    to  harmonize  the  overlapping  grants  of  their  charters  by 

•^rovulmg  ,n  the  Rhode  Island  charter  "that  the  sayd  Pawcatuck  river  sb.l 

bee  alsoe  called  abas  \ orrogan.sett  or  Xarrogansett  river,  and  that  tb.it  river 

m  our  late  graunt  to  Connecticut  Collony  mentioned  as  the  easterlv  bounds  of 

'  /'•((/..  pp.  700-1.  §§  1233.  1234. 

-Il'ij.,  p.  791,  §I2J4. 


■|!| 
fit 

I- 

■:| 

!  -  .if 


'-  'I 


'^11 


104 


THE   UNITED  STATES:   A   STVDY   IN    INTERNATIONAL  ORGANIZATION 


that  Collony;"  that  Atherton  and  his  associates  sought  to  obtain  bv  purchase 
and  l)y  mortgage,  the  lands  in  (luestion.  to  be  held  by  them  either  in  Connecti- 
cut or  Massachusetts.  IxJth  of  which  claimed  the  region.  Imt  not  under  Rhode 
Island;  that  the  decree  of  the  Commissioners  set  aside  the  claims  of  Atherton 
and  his  associates,  and  gave  Rhode  Island  the  advantage  of  possession  leav- 
mg  the  question  of  title  t(j  l)e  adjusted  with  Connecticut,  as  it  eventualb-  was. 
by  the  decree  of  the  Privy  Council  in  1727.  and  with  Massachusetts  by  a  de- 
cree of  that  body  in  1746  and  by  a  decision  of  the  Supreme  Court  of  the 
Lnited  States  exactly  a  century  later. 

Cut  to  return  to  the  complaints  of  Messrs.  Holden  and  Green.  On  the 
last  rlay  of  January.  1679.  the  Committee  of  the  Privv  Council  for  hearing 
appeals  presented  their  report,  from  which  it  appeared  that  the  trouble  was 
"  chictly  occasioned  by  the  pretensions  and  proceedings  of  William  Harris  of 
Patu.xet  in  \cw  Mngland.  who  by  his  Petition  presented  vmo  ^'our  Majestic 
in  Conncill  on  the  11th  of  June.  1675.  did  set  forth,  that  he  and  twelue  others 
neer  I-orty  yeares  since  purchased  of  the  Indian  Princes  a  certain  parcel!  of 
Land  called  Patuxct.  which  they  enjoyed  Peaceable  iur  nianv  Yeares.  notwith- 
standing the  Seuerall  Claymes  of  the  Towne  of  Providence  and  of  the  Mas- 
saclnistt  Colony,  vntill  John  Ilarrud  and  a  Party  with  him  forceablv  entred 
vpon  part  of  those  Lands  vnder  pretence  of  a  purchase  from  other  Indians."  » 
Holden  in  his  petition  furuier  alleged  that  Harris  .iiid  party  retained 
possession  of  a  part  of  the  lands  in  (juestion  against  the  verdict  and  judgment 
of  court,  so  that  by  reason  of  the  contiguity  of  Patuxet  to  the  several  towns 
and  p-ovinces.  Harris  and  his  partners  apprehended  "no  Small  Danger  of 
loosing  their  Rights  by  the  encroachment  of  t'  .  Towne  of  Providence.  War- 
wick, new  Plymouth  and  the  Massachusets  Colony." 

In  this  state  of  affairs,  in  August.  1673,  the  governors  of  Massachusetts. 
Xew  Plymouth.  Connecticut  and  Rhode  Island  were  directed  to  appoint 
"  some  able  honest  and  indifferent  Persons  to  join  with  each  other,  and  to 
cause  the  Differences  and  troubles  arising  to  the  Petitioner  and  his  Partners, 
concerning  the  Lands  of  Patuxet  to  be  brougin  to  a  fair  Triall.  and  that  by  a 
just  indifferent,  and  vpright  Jury  in  like  manner  appointed,  all  might  l)e  fi- 
nally determined  according  to  Ju.stice  and  without  delay."  - 

It  appears  that  the  commission  was  duly  issue.l  and  executed,  although  no 
report  of  the  proceedings  was  transmitted  to  the  Privy  Council,  ina.smuch 
as  the  Committee  lor  Hearing  Appeals  .stated  that  the  first  knowledge  they 
had  of  it  wa  obtained  through  the  petition  of  .Messrs.  Holden  and  Green, 
from  which  le  Committee  likewise  obtained  its  knowledge  of  tlie  facts  and 
the  proceedings  under  the  commission.  These  two  gentlemen,  to  whom  the 
'    '  '/  "^  Bfi'i  ^'^''■^  Ccuiicil,  Colonial  ScrUs.  1613-1680.  p.  800,  §  1_'44. 


-  Ilnl.. 


p.  801. 


FURTHER   COLONIAL   PRECEDENTS 


105 


territorial  integrity  of  Rhode  Island  is  very  largely  due.  set  forth  in  their  peti- 
tion that  in  pursuance  of  royal  letters  they  attended  the  time  and  place  ap- 
pointed by  the  commissioners,  the  major  part  of  whom  "  l)eing  elected  out  of 
their  professed,  and  mortall  Ennemies.  and  ouervoted  those  of  Rhode  Island, 
granting  and  awarding  to  the  said  Harris  the  I.niuls  bought  and  improved  hy 
them,  and  also  giuing  great  Damages,  notwithstanding  the  Testimony  of  one 
Mr.  f  Roger]  VVilliams  the  first  Indian  purchaser  of  those  Lands,  and  other 
materials  Witnesses  in  that  behalf,  wherby  aboue  five  thousand  acres  of  land 
and  Meadows  belonging  to  the  Town  of  Warwick  and  parts  vl  adjacent  were 
taken  away  from  them."  ' 

It  appears,  further,  that  the  Commissioners  had  refused  to  suspend  their 
sentence  at  the  request  of  Messrs.  Holden  and  C.reen,  whereupon,  taking  ad- 
vantage of  their  charter,  they  appealc.l  to  His  M.oesty,  and  undertook  their 
mission  to  Kngland,  "  to  supplicate  your  Majesties  Royall  interposition  and 
settlement  of  their  Country,  which  by  reason  of  the  said  diflFerent  lawes  and 
formes  of  Government  in  the  seuerall  Colonies,  would  not  otherwise  be  ac- 
complished." - 

The  voyage  to  England  apparently  was  noised  abroad,  because  the  Commit- 
tee states  that,  on  the  15th  of  Octok-r.  1678.  several  months  after  the  filing 
of  the  Holden  and  Green  petition,  a  letter  was  received  "  from  Mr.  Leveret 
Gouernor  of  your  Majesties  Colony  of  the  Massachusets  .  .  .  enclosing  a  Re- 
turn made  vnto  him  by  the  Comissioners  of  the  Court  constituted  by  \'irfue 
of  your  Majesties  said  Letters  upon  the  Case  of  William  Harris,  which  hav- 
ing been  conmiunicated  vnto  vs.  Wee  found  it  to  contein  the  proceedings  of 
the  said  Court."     From  Governor  Le\erett's  report  it  appears  that  "  two  Com- 
missioners from  each  of  the  respective  Gouermrcnts  of  your  Majesties  four 
Colonies  of  Xew  England,"  appeared  at  Providence  Tlamation  in'the  Colonv 
of  Rhode  Island  on  the  3d  of  October,  1677,  who.  to  quote  the  record,  "  hav- 
ing Duely  Chosen  twelve  ?ury  men,  adjourned  to  the  17th  of  Xovemkr  fol- 
lowing, that  so  tnere  might  Iw  timely  Summons  given  to  such  as  the  plantifs 
or  Demandents  Desired  to  Commence  their  .Action    against ;"  that  the  jury 
rendered  several  verdicts  in  favor  of  William  Harris  and  two  of  his  partners 
who  had  joined  with  him:  that  a  verdict  was  given  for  Harris  and  l-ield 
against  the  town  of  Warwick  and  the  purchasers  "  of  the  said  Land  called 
Warwick;"  that  the  verdict  was  accepted  by  the  court  with  allowance  of 
costs;  that  the  court  ordered  the  town  of  Providence  "  to  choose  able  men.  to 
run  such  a  Dividing  lyne  as  might  distinguish  and  mark  out  the  Lands  claimed 
hy  William  Harris  and  Partners  "  ;  that  on  june  18,  1678.  the  draft  of  the  line 
was  presented  to  but  not  accepted  by  the  court,  inasmuch  as  it  did  not  seem  to 

•  Ihul..  p.  801. 


li 
if 

'I 
11 


it 


'I 

.1 , 


-.    i] 


"i  3 


106 


THE   UNITED  STATES:   A   STUDY   IN    INTERN ATION.M.  ORGANIZATION 


that  hotly  to  he  "  according  to  the  true  meaning  of  the  Verdict " ;  that,  after 
much  debate,  the  court,  deeming  it  "  most  satisfactory  that  the  former  Jury 
themselves  should  explain  their  ownc  meaning  in  their  Verdict,"  summoned 
them  to  appear  at  their  next  adjournment  on  the  1st  of  October  following.* 
At  this  stage  an  unexpected  diflficulty  presented  itself,  inasmuch  as,  to 
quote  the  language  of  the  record,  "  one  of  the  Commissioners  of  the  Colony 
of  Connecticut  absenting  himself  the  next  Day  after,  gaue  occasion  to  the 
Commissioners  of  Rho<le  Island  to  with  Praw  themselves  from  the  Court." 
This  did  not,  however,  daunt  the  rest  of  the  commissioners,  who.  "notwith- 
standing continued  their  meeting,  and  the  Gentlemen  of  the  Jury  likewise 
made  tbeir  appearance,  except  the  three  appointed  by  Rhixle  Islande.  who 
being  Come  the  next  D.iy  refused  to  act  as  to  the  Explanation  of  their  former 
\'cnlict,  alleaginj;  that  they  had  with  the  rest  of  the  Jury,  given  in  their  Verdict 
vpon  Oath,  which  was  accepted  by  the  Court  and  they  Dismist,  And  therefore 
would  nut  conccrne  themselues  farther  almut  it."  The  other  jurymen,  how- 
ever, not  suffering  from  the  scruples  of  t.ieir  brethren  from  Rho<le  Island, 
whose  land  was  in  question,  "  gaue  in.  vnder  (heir  hands  an  explanation  of 
what  they  intended  in  their  former  Verdict,  which  the  Commissioners  con- 
ceiued  to  Ije  that  lyne,  which,  according  to  Verdict  of  Jury  and  Justice  ought 
to  lie  run,  and  possession  accordingly  given  vnto  the  Plantifs,  at  least  vntil  his 
Majesties  pleasure  should  be  further  knowne."  The  procedure,  however, 
worried  the  members  of  the  court,  for  the  record  continues: 

Vet,  forasmuch  .is  one  of  the  Commissioners  was  absent,  and  two  being 
present,  Did  oppose  the  s.nid  expl.in.ition,  and  one,  or  more  hesitated  .ibout 
the  granting  Executin  The  said  Commissioners  thought  fit  to  leaue  the 
finall  Determiaition  of  iliis  whole  affair  vnto  your  Majestic." ' 

Upon  the  receipt  of  the  report  from  Governor  Leverett,  the  Committee 
ordered  a  copy  thereof  to  lie  tlclivered  to  Messrs.  Holden  and  Green,  who 
made  the  following  pertinent  observations  upon  it:  1st,  that  the  complaint  of 
William  Harris  concerned  the  lands  of  f'atuxet,  not  the  lands  of  Warwick, 
which  were  not  part  thereof,  and  that  the  court  therefore  had  no  power  to 
determine  the  owner.,hip  of  any  other  lands  than  those  of  Patuxet ;  2d.  that 
the  town  of  Warwick  publicly  protested  in  open  court  against  the  proceedings 
of  the  Commissioners  and  claimed  an  appeal  to  liis  Majesty  in  council,  which 
the  majority  of  the  commission  refused  to  grant,  "  Saying  it  would  l)e  of  ill 
Consequence  to  the  Country  to  allow  of  any  appeal  to  your  Majestic;"  3(1,  that 
from  the  oath  of  Roger  Williams,  who  purchased  the  lands  from  the  Indians 
which  Harris  and  his  partners  then  possessed,  it  appeared  "  that  the  Lands 
claimed  by  Harris  of  the  Town  of  Warwick  were  nither  bought  by  him  of 

».(</i  ('/  F'ri-\  Council,  Colonial  Scries,  r6is-i6So,  p.  801. 


i  .'  Hi  J 


rUITIIEtt   COU)NIAL    I'KECEUENTS 


107 


the  Indian  Sachims  or  by  him  sold  vnto  Harris  or  Partners,  nor  is  there  men- 
tion of  those  Lands  in  any  Deed  of  Sale;"  4ih,  that  the  line  run  by  the  town  of 
Providence.  "  whereof  Harris,  and  Field  arc  lnhai)itants  was  accepted  by  the 
Commissioners  and  is  according  to  RiRht ;"  and  5th.  that  the  line  run  was  not 
satisfactory  to  the  Commissioners  themselves  who  had  run  it,  in  that  they  had 
been  obliged  to  submit  the  whole  matter  to  his  Majesty  in  council.' 

Therefore,  Messrs.  Holdcn  and  Green  prayed  that  the  original  line  be 
confirmed,  or  that  matters  remain  "in  the  first  state  '  until  Harris  and  his 
partners  should  show  cau.sc  to  the  contrary  to  His  Majesty.  "  In  Consider- 
ation of  the  Complainants  humble  appeale  vnto  your  Majestic  for  Justice 
(which  your  Majestic  in  like  Cases  will  alwaies  allow  of  and  encourage)  to- 
gether with  the  reasons,  and  Euidences  Offered  by  them  in  Justification  of  their 
Right,  and  present  jxis-sessions  which  do  not  appear  to  be  any  part  of  the 
Lands  of  Pati>.xet,  which  only  by  your  Majesties  Commission  were  to  be 
brought  to  a  tryall."  the  Committee  for  Hearing  .Xpjaals  recommended  that 
"  Your  Majestic  do  therfore  Signifie  Your  Royall  Pleasure  vnto  William 
Harris,  and  all  others  whom  it  may  concorne  that  the  Inhabitants  of  the 
Towne  of  Warwick  be  not  Disturbed  in  the  quiet  and  peaceable  enjoyment  of 
the  Lands  claymed  and  jxjssessed  by  them  the  Inhabitants  of  the  Town  of 
Warwick,  And  that  all  things  relating  therevnto  remain  in  the  same  state  they 
were  in  before  the  meeting  of  the  said  Commissioners  vntill  the  said  William 
Harris  or  Partners  shall,  in  the  Law  full  Defence  of  their  Rif,'ht  before  your 
Majestic  in  Councill  make  out  a  Sufficient  title  to  the  said  Lands."  - 

The  report  of  the  Committee  was,  as  usual  in  such  cases,  approved  and 
orders  given  accordingly  for  the  inhabitants  of  Warwick.  As  regards  the 
claims  of  Harris  to  lands  situated  within  Patu.xet,  concerning  which  he  went 
to  England  to  petition  the  Privy  Council,  "  which  only  by  his  Majesties  Com- 
mission were  to  be  brought  to  a  tryall,"  the  commissioners  made  a  favoralile 
report,  and  it  was  therefore  ordered  that  Harris  and  his  partners  l)e  peace- 
ably and  quietly  possessed  thereof. 

The  order^of  the  King  afifirming  the  report  of  the  Committee  was  dated 
January  2.  1679,  but  the  matter  did  not  rest  here,  as  it  appears  from  the  record 
of  the  Privy  Council  under  date  of  July  2  of  the  same  year: 

Whereas  the  said  Holden  and  Green  were  no  sooner  departed,  but  the 
letUioner  William  Harris  hath  made  his  Appearance,  beseeching  your  Ma- 
jesty to  take  such  Course  as  might  finallv  determine  the  Matters  co'niplavned 
of  by  him.' 

The  Committee  was  ver\-  naturally  of  the  opinion  "  That  by  reason  of  the 
distance  of  Places  and  Absence  of  the  Parties  it  wilbe  a  matter  of  too  great 

•  H'id..  pp.  803.  804. 
-  Ibid.,  pp.  804-5. 
'  Ibid.,  p.  849,  §  1291. 


<     M 


it 


108 


THE   fMTEl)  STAltS:    A   srUiV    IN    I N  IKH.V  ATION  Al.  OKliANlZATION 


I'urtlirr 
.'u.luial 
rrtLC'lcrits 


clifTicnlty  for  your  Majesty  to  give  such  Judgment  therein  a*  may  equally  de- 
cide their  respective  pretensions, "  and  suiting  th'-  action  to  the  words,  they 
recommended,  for  the  reason.*  stated  l>y  them,  the  following  pr^  .edure  which 
in  their  opinion  should  be  adopted  as  it  was  calculated  to  <lo  justice  towards 
the  parties: 

And  whereas  the  said  Unlden  and  Green  di<l  offer  their  Exceptions  against 
the  Colonics  of  the  Massacliusits  and  Conccticut  u|>on  divers  p;i>t  dilTercncts 
between  them.  And  that  on  the  other  side  the  Petitioner  William  Harris  thinks 
he  has  just  cause  to  except  against  the  C  olony  of  Rhode  Island  as  lieing  par- 
ticularly intrresscd  in  the  present  Controversy.  Wee  therefore  humbly  offer. 
That  your  .Majestys  Koyall  CommantU  lie  again  .sent  to  the  (iovernor  and 
Magistrates  of  your  Colony  of  .\'cw  Plymouth,  Authorizing  and  requiring 
them  to  call  Infure  them  the  said  Kamlall  Holden  and  John  (ireen,  and  other 
IVrsoii*  in  wl-,.«se  lnhalf  tluy  have  lately  appealed  imto  your  Majesty  ,\nd 
baviiig  in  due  manner  examined  the  Pretensions  of  the  s.Vid  Harris  uiito  the 
Lands  po^>e'i«ed  by  them,  do  retiiriie  unto  yotir  Majesty  a  particular  State 
thereof  and  their  opinions  thercu|>on  with  all  convenient  speed. 

.And  whereas  your  Majesty  hath  alreadv  thought  fit  to  Order,  That  the 
said  William  Harris  and  Partners  \k-  peacably  .ami  quietlv  possessed  of  the 
Lands  of  Patuxet  adjudged  unto  them  bv  the  first  .ind  Three  last  \erdicts 
gnen  III  pursuance  of  your  Majestvs  late  C  onmiission.  Wee  further  offer  That 
the  (.overnor  and  Magistrates  of  the  Colony  of  Khode  Island,  to  whc.se 
Jurisdiction  the  said  lanrls  apperteyne  Ik-  strictly  charged  and  required  to  put 
the  said  \\ill,.ini  Harris  and  Partners  into  the  quiet  possessi(m  thereof,  .and 
to  take  care.tb.it  Ivxerutifin  be  given  for  their  Hammage  and  Costs  allowed 
by  the  said  Verdicts  and  Jii<lemeiits  of  Court,  within  the  space  of  Three 
Moneth^  at  furtlie-t  after  the  Riceipt  of  vour  Majestv's  Comands.  And  that 
in  default  thereof,  sufficient  Powers  may  lie  sent  untothe  Neighbouring  Col- 
ony of  New  Plymouth  to  cause  the  same  to  be  duly  executed  without  dehay." 

rtarris  returned  to  Rhixle  Island  in  Septtivibcr,  1670,  ?,nd  was  \ictorious  in 
the  rehearing  against  Warwick. 

.\s  far  as  we  are  concerned,  the  dispute  may  well  end  here,  inasmuch  as 
the  present  purpose  is  not  so  much  to  show  the  decision,  but  the  method  of 
reachinir  it,  where  representatives  of  dilTerent  colonics  claimed  land  within 
ani>thcr,  where  representatives  of  one  and  the  .same  colony  claimed  lands  t.> 
which  .-idj.iining  colonics  laid  claim,  and  where,  finally,  the  claim  of  land 
within  one  colonv  is  ba-cd  upon  title  alleged  to  rest  in  another  and  different 
colony.  For  all  of  which  disputes  this  case,  in  its  ditTerent  phases  may  be 
cited  as  a  precedent  for  the  juri.sdiction  in  these  matiers  conferred  upon  the 
."supreme  Court  of  the  I'nited  .'States  by  the  framers  of  the  Constitution  of 
the  more  perfect  I'nion.  However,  it  may  perhaps  be  permissible  to  conclude 
the  analy>is  of  this  interesting  law-suit  with  the  statement  that  after  obtainintr 
judgment  against  Warwick,  the  litigious  Harris  set  sail  for  F.ngland  in  a  ves- 
sel very  inappropriately  called   The   I'mty.  in  order  to  appear  before  the 

'  .his  of  the  Prhy  Council,  Colonial  Scries,  1613-1680,  pp.  849-50. 


Pl'RTIlEa  ClH^)NI,\t.  rKECtDENTS 


109 


Privy  Council  not  only  in  propria  persona  hut  as  the  aRcnt  of  Connecticut 
and  of  Major  Atherton  ami  his  asMtciatcs  in  their  vari.ms  pretensions  to  the 
XarraKan-wft  region.  On  the  voyage  thither  he  was  taken,  in  January.  1680. 
hy  an  Al^er'an  pirate  and  hiM  in  slavery  for  ransom.  When  he  was  eventu- 
ally rcleascil  iii)on  its  i.avtmiit,  he  <lii(l  in  I  ondon  within  a  few  davs  after  his 
arrival,  leavinj;  it  to  the  I'rivy  Council  to  decide  in  17J7  and  1746  the  claims 
which  he  Iwul  espoused,  adverse  to  his  contentions  and  in  favor  of  the 
stout  little  colony  of  Rhode  Island,  of  which  he  was  an  unworthy  resi- 
dent. 

r.issin>,'  l.y  the  many  cases  of  appeal  from  l(Kal  courts  to  the  Privy  Council 
involving  a  denial  or  nnscarriaRc  of  justice,  which  could  and  prohaNv  would 
Iw  taken  in  onlinary  course  from  a  lower  to  a  court  of  last  resort,  inasmuch 
as  they  neither  furnished  a  precedent  nor  thn.w  liRlit  uiMin  the  judicial  power 
of  the  I'nited  Stales,  the  iiiree  categories  of  appeals  will  Iw  consi.lercd.  and 
in  some  little  detail,  as  they  are  ai)pare!itty  the  source  of  that  jurisdiction 
conferre.l  in  (ir>t  instance  up<in  the  ConRrcss  hy  the  ninih  of  the  Articles  of 
Confederation  and  upon  the  Supreme  Court  of  the  I'nited  Stales  hy  twelve  of 
the  ori>,'inal  thirteen  States  in  creating'  the  more  perfect  I'nion. 

First  as  to  houndarv  disputes  k-tueen  the  colonies  in  the  ahsencc  of  an 
enforcihie  aKrecnient  between  them.  Instead  of  discoursinc  in  peneral  and  in 
the  ahslmct  upon  the  nature  and  juris.liction  of  the  Privy  Council  .ind  the 
l-ord>  Commissioners  of  Trade  and  Plantaticms.  it  is  advisaMe  to  take  a 
specific  and  concrete  case,  to  follow  it  from  the  l)ei;iiminj4  to  the  end.  and 
thus,  as  it  were,  let  it  tell  its  own  story.  For  this  purpose  the  hn\jr  ,lrawn  out 
controversy  U^tween  \e«  \,>rk  and  Xew  Jersey  is  chosen,  not  only  Iwcause 
it  is  complete  in  itself,  hut  hecause  it  states  perhaps  hetter  than  any  other  the 
ordinary  course  of  |)rocedure  in  such  disputes. 

On  Decemher  23.  1717.  an  Act  of  the  Assembly  of  the  Colonv  of  Xew 
York  called  attention  to  the  fact  that: 


I'.'imii.iry 
iii-|.iitt 
l^lAirn 
Nr»  V..rk 
an.t  \ew 
Jr-Iity 


The  Partition  Lines  between  this  Colony  and  the  Colony  of  \',-r.  - 

/cr.fcy.  are  nece-  sary  to  l>e  known  and  ascertained,  in  order  that  such  of  iW 
(nli.ibitants  of  this  Colony,  whose  Estates  or  H.il.itations  arc  adjacent  to 
nw]  iH.rder  on  ilie  s.u.l  Partition  Lines,  ni.ix  pe-  ,ihlv.  and  without  Mol.-.n- 
tion,  en)..y  t he  Lru.ts  of  their  Industry  ;  and  that  file  Government  ni..v  not  he 
defr.inded  of  the  publick  Taxes  that  may  arise  and  become  due  from  the  sai,l 
Inhabitants  by  their  pretending  that  they  do  not  dwell  within  this  Col- 
ony.  .  .  ,    ' 

I-or  this  purpose  money  was  appropriated  to  "  be  applved  to  defray  that 

part  of  the  Charge  of  Kunning.  Surveying  and  ascertaining'the  Partition  Line 

I  mutt  and  P.oundary  between  this  Colony  and  the  Colony  oi  A'.tc  Jcrscv 

whi  •    nay  be  requisite  for  this  Colony  to  pay  ...  in  such  parts  v>t  propor- 

'  /.  ..J  of  \,;i-york  from  the  Year  ti^r,  to  I7f       -V  ivf  (1762),  p.  125. 


From 

NfBnti.ltion 

t"  Judii-tat 
l'r'>cr(iiire 


il 


■i     ! 

-    If 


no 


THE   UNITED  STATES:   A   STIDY   IN'    INTEHNATION Ai    ORGANIZATION 


tions  as  shall  be  requisite  for  that  Service,  when  the  Survey  ascertaining  and 
Runing  of  the  said  Line  Limitt  and  Boundary  shall  he  l)egan  and  Carryed  on 
by  the  mutual  Consent  and  agreement  of  his  Excellency  &  Council!  of  this 
Province  and  the  Proprietors  of  the  soil  of  the  said  Pr  ■  'nee  of  Xe7v  Jersey 
.  .  .  which  Lines  l)eing  Run  ascertained  and  agreo  •  m,  ;.y  ;nc  Su'vevors  and 
Commissioners  of  each  Colony,  as  afcTre  said,  ;  all  fiirevc-  th(  ,  ifter  Ijc 
Deemed  taken  be  and  remain  as  the  partition  Lir  L  nitt  and  B-  -ndary  of 
this  Colony,  and  all  !x)dys  Corporate  and  Politick,  c'.ri  iH  uther  pci  ^ons  what- 
soever within  this  Province,  shall  be  forever  Concluded  thereijy  ' 

On  March  27.  1719.  the  Province  of  New  Jersey  passed  an  Act  "  for  run- 
ning and  ascertaining  the  Division  Line  betwixt  this  Province  and  the  Province 
of  \ew-Vork,"  and  after  stating  the  existence  of  disputes  and  controversies 
between  the  two  colonies,  as  in  the  case  of  the  New  York  Act.  provided  for 
the  appointment  of  two  or  more  commissioners  with  the  Surveyor  General 
i/f  the  I'rovince  of  New  Jersey,  by  the  Governor  of  Xew  Jersey,  by  and  with 
the  consent  of  the  Council.  "  empowered  by  a  Commission  under  the  Great 
Seal  of  this  Province,  to  join  with  such  Commissioners  and  Surveyors  as 
shall  be  appointed  on  the  Part  and  Behalf  of  the  Province  of  Xe^i'-York," 
to  "  Klin,  Survey.  Agree  on  and  Ascertain  the  sai  1  Line,  Limits  and  Bound- 
aries betwixt  this  Province  of  Xctv-Jcrscy.  and  the  said  Province  of  Xcw- 
Yurk,  according  to  the  true  Limits  thereof,  as  near  as  conveniently  can  l)e 
done."  And  it  was  further  provided  that  the  line  drawn  by  the  commis- 
sioners of  the  two  provinces  in  accordance  with  their  commissions  was  to  lie 
considered  the  boundary  line  l)etwecn  the  two  provinces  "  any  Law,  Usage, 
Custom  or  Pretence  to  the  contrary  in  any  wise  notwithstanding."  » 

In  1719,  pursuant  to  the  Acts  of  Xew  York  and  Xtw  Jersey,  Governor 
Hunter  of  the  former  colony  issued  conmiissions  to  two  commissioners  and  the 
SiT'-veyor  of  the  province  to  meet  with  the  two  commissioners  and  the  Sur- 
veyor General  of  the  pro\  ince  of  Xew  Jersey,  "  in  Order  to  find  out  and  De- 
termine which  of  the  Streams  i>  the  Xorthermost  Branch  of  the  River  Dela- 
ware, And  that  then  when  such  Branch  is  so  Discovered  that  the  said  Sur- 
veyor or  Surveyors  Carefully  According  to  the  best  of  their  Knowledg  and 
understanding  Discover  and  find  out  that  Place  of  the  said  Xorthermost 
Branch  of  Delaware  River  that  Lyes  in  the  Latitude  of  fforty  one  Degrees  and 
fTorty  Minutes  which  is  the  Xorth  Partition  Point  of  Xew  York  and  Xew  Jer- 
sey," and  to  "  Disct)ver  that  part  on  the  West  side  of  Hudson's  River  that 
Lyes  in  the  fTorty  One  Degree  of  Latitude."  and  having  fixed  these  two  points, 
to  run  a  straight  line  between  them,  "  which  line  Injing  so  Rim  and  Marked 
out  is  forever  hereafter  [according  to  the  Acts  of  the  two  Colonies]  to  Ije 

»  The  Acts  of  the  General  Assembly  of  the  Proiince  of  Nov  Jersey  (1752),  Vol.  i,  pp.  77-8. 


FURTHER  COLONIAL  PRECEDENTS 


111 


Deemed  taken  be  and  Remaine  as  the  Partition  Line  Limitt  and  Boundary 
between  our  said  Provinces  of  Xew  York  and  Xew  Jersey."  > 

By  an  indenture  of  July  25.  1719.=  the  commissions  appointed  by  the  two 
colonies  certified  that  the  point  of  the  Delaware  had  tjeen  located,  but  owing 
to  disputes  which  arose  between  the  colonies,  the  commission  did  not  com- 
plete its  work,  and  the  question  remained  unsettled  until  it  was  taken  up  anew 
by  an  Act  of  Xew  Jersey  of  Fe!)ruary  18.  1748.  by  virtue  whereof  the  Iwund- 
ary  Ime  between  the  two  provinces  was  to  be  drawn  in  pursuance  of  the  \cts 
of  the  two  colonies,  of  1717  and  1719.  if  Xew  York  consented  thereto,  and 
if  not.  by  commissioners  on  the  part  of  Xew  Jersey."  Because  of  protests 
on  the  part  of  Xew  York,  this  Act  containing  a  suspending  clause  which  re- 
quired the  approval  of  the  Crown  was  disallowed  bv  the  King  in  Council  upon 
the  recommendation  of  the  Lords  of  Trade  and  Plantation  dated  July  18, 
1753.^  This  recommendation,  setting  forth  the  proceedings  actually  had  in 
this  case  and  those  which  should  have  been  had,  is  as  follows. 

In  the  first  place  the  Board  of  Trade  states  that  two  considerations  arise 
upon  the  Xew  Jersey  act :  First,  "  such  as  relate  to  the  principles  upon  which 
it  is  founded";  second,  "such  as  relate  to  the  Transactions  and  Cir- 
cumstances which  accompany  it."  Under  the  first  heading  the  Board  calls 
attention  to  the  fact  that  the  act  of  Xew  Jersey  is  the  attempt  of  that  province 
to  secure  the  determination  of  a  matter  of  specific  interest  to  Xew  York  and 
of  general  interest  to  the  Crown.     Thus : 

AS  to  the  first,  it  is  an  Act  of  the  Province  of  Xew  lersev.  interested  in 
fron?'^'""""''"°"  ""''  ''"''  '"  ""■"  '■''^"■■*^"'l"<-'"''->'  Advaiitagcs  to  Arise 

THE  Province  of  Xew  Jersey  in  its  distinct  and  separate  Capacity  can 
neither  make  nor  Lstal.lish  for  deciding  diflferences  between  itself  and  other 
parties  concerned  in  Interest. 

TFII-  Established  Limits  of  its  Juris.liction  and  Territory  are  such  as  the 
Grants  under  which  ,t  claims  have  assigiu-d.  If  those  Grams  are  doubtful 
and  differences  Arise  tipon  tiie  Construction  or  upon  the  matter  of  then  \Ve 
humbly  Apprehend  that  there  are  but  two  methods  of  deciding  then  either 
by  the  concurrence  of  all  parties  Concerned  in  Inte  4  .-  by  the  reeu  ir  and 
legal   I.orms  of  Judicial  proceedings.  And  it  ap,  to  us    that  the  IcJll 

metho,l  of  proceeding  must  be  derived  from  the  In,,  ..I  1  Autl^ri  otl^e 
Crown  Itself,  signified  by  a  Commission  from  vour  Niajestv  uS  he  Pre  t 
Seal  the  Commission  of  subor.linate  officers  ahd  of  do  ivativ " povvers  1  S 

be,  as  \\  e  humble  conceive,  to  .set  up  e.x  parte  Determination  and  Incomnete  it 
Jurisdictions  in  the  i>lace  ol  Justice  and  legal  authority.  •"'-ompetun 

•A^fM'/tTjo' /-oaj  (.Allinson's  Compilation)    p   17' 
lOflj    iV"!"'"''"-'  ^'''"'•''H   *■'   ""■   Colonial   History   of  'x,-w  /,;;.-v    ,M    \Vm     \     Ul,,.  !•  ,  ? 
1882,  Vol.  .1,,  part  1,  pp.  144-150.    .\lso.  Prat.,  /ioumlan.-s.  pp.  osU  ^  l'"^l^^a,l, 


'/ 


HI: 


H  11 


112  THE   UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 


■>1 

t't'-- 


IF  THE  ACT  OF  NEW  JERSEY  cannot  conclude  other  parties,  it  can- 
not be  I'lTccfiial  to  tin-  Kiids  proposed:  an  that  it  would  not  be  Effectual  to 
Form  an  ab^ulute  Decision  in  this  Cast-,  the  Legislature  of  that  province 
seems  Sensible,  while  it  endeavours  to  leave  to  your  Majestys  Ueterniinatioii 
the  Decision  of  one  point  relative  to  this  matter  and  of  considerable  Imixjr- 
tance  to  it,  which  proves  your  .\!:ijcsiy  cannot  derive  from  them,  without 
their  bavin,  the  Power  to  Establish  the  thing  itself  without  the  Assistance 
of  your  Majesty. 

And  for  the  reasons  stated,  the  Board  concludes  that  "  the  present  Act 
without  the  Concurrence  of  other  parties  concerned  in  Interest,  is  unwarrant- 
able and  ineffectual."  ' 

Under  the  second  heading,  the  Board  of  Trade  calls  attention  to  the  fact 
that  the  Crown,  on  the  one  hand,  and  the  provinces  of  New  York  and  Xew 
Jersey,  on  the  other,  arc  interested  parties,  and,  as  is  to  he  expected,  the  in- 
terest of  the  Crt)\vn  is  first  stated.  In  the  first  place  the  I'.oard  mentions  that 
the  Crown  was  not  a  party  to  the  negotiations  and  agreements  between  the 
two  provinces  for  the  settlement  of  their  dispute,  and,  because  of  this  lack  of 
confirmation,  holds  that  the  proceedings  are  void.  In  the  next  place,  the 
interests  of  the  Crown  are  specifically  set  forth.    Thus: 

With  regard  to  the  Transactions  on  the  part  of  New  York,  We  beg  leave 
to  observe,  that  whatever  agreements  have  been  made  formerly  between  the 
two  pri>vinces  tor  settling  their  Boundaries  whatever  .Acts  of  Assembly  have 
passed,  and  whatever  Commissions  have  been  issued  by  the  respective  Gov- 
ernors and  (iovernnicnts  the  jiroceedings  uti<!tT  them  have  never  been  per- 
fected, the  work  remains  uiilinished.  and  the  l)i.i)Utes  between  the  two  prov- 
inces Subsist  with  as  much  Contradiction  as  ever.  Hut  there  is  a  Circum- 
stance which  appears  to  us  to  have  still  more  weight,  namely  that  those 
Transactions  were  never  properly  warranted  on  the  part  of  the  CROWN: 
The  CROWN  never  pariicioated  in  tbeni.  and  tbcrcfore  cannot  be  bound 
with  respect  to  its  Interests  by  proceedings  so  authorized. - 

In  disputes  of  this  kind,  the  interests  of  the  Crown  are  said  to  be  three- 
fold:  First,  of  "Sovereignty  respecting  mere  Government;"  second,  "of 
Seigneurie  which  respects  Escheats  and  Quit  Rents ; "  third,  "  of  property  as 
relative  to  the  soil  itself,  which  last  Interest  takes  place  in  such  Cases  where 
either  Your  Majesty  has  never  made  any  Grants  of  the  Soil  or  where  such 
Grants  have  by  Actual  Escheats  reverted  to  Your  Majesty."  On  this  phase 
of  the  subject  the  Board  says : 

WITH  regard  to  the  first  of  these  Interests  viz,  that  of  Sovereignty,  it  has 
been  allcgid  to  L's  in  Support  of  the  .\ct,  that  it  is  not  materially  Affected  by 
the  Oueslion.  as  Ixith  provinces  are  under  ^^lur  Niajestvs  iminediate  direction 
and  ( jovcrnment :  But  tiiey  stand  in  a  very  ditTerent  light  with  respect  to  Your 
Majestys  Interests  in  the  Quit  Rent*  and  Escheats,  in  both  which  articles  the 
Situation  of  the  two  provinces  appears  to  us  to  make  a  very  material  altera- 
tion.   For  altho'  the  province  of  New  Jersey  is  not  under  regulations  of  pro- 

>  Documents  Relating  to  the  Colonial  History  of  New  Jersey,  Vol.  viii,  part  1,  pp.  145-6. 

1  Ihid  .  p   Hfi 


Ilii 


PlaTllEH  COLONIAL  i'MECEDENTS 


113 


wmmmm 

to  observe,  that  in  tlu-  (  -,.h  r.f  kI^  .  ^  .  A      '     '^H''  "^  beg  leave  farther 

cuMoti   «hKh    uou.i   seen,   ,o  he   inevitahle   in   the   premises,   that   neither 

'.r..u,ce  shou.l  have  entere.l  into  an  a.^reenient  uith  the  „ther.  much  less 

ve  appomte.    a  commission  to  .letermine  the  bo„n.-aries  without  p.  .-n.ission 

a,l^a.K^  an,l  wuhout  conhrmation  of  their  acts  by  the  Crown.     Taking  up 

the  question  ot  conhrmati..n  the  l!oar<l  observed :  ^ 

and  co.isnm.-ntly  participate!  in  them    o  far  as  tri  cn„cl,,d    i^'.-lf      \\       r?; 
Jh..oto.  ...  the  next  p^ace  beg  leave  to  Consider'the  a^isla^e  L^d  S 

Act'pas:::d'in  wtoJkinV^rr^"""'  '■''  ^'-"".^-^-"  'o  ,1,0  aforesaid 

In  th,s  connection  the  Board  states  that  the  approval  of  the  Act  conid  not 
be  sa„l  to  be  an  approval  of  the  commission,  f..r  which  a  small  sum  o'"  monev 
^■.as  appropr,ate<  .  and  the  proceedings  to  be  ha.l  under  it.  which  could  oulv 
dcr,ve  the,r  vaiubty  trom  specific  approval  in  a.lvance  and  con.irmation  aftc'r 
u.mpIet,on.     It  ,nay  be  that  the  approval  „f  ti,e  act.  including  tins  iten.  j    'd- 

d  ..n-ernor  I  .unter  „,  the  bebef  that  he  was  authorize.!  to  appoint  the  com- 
"'-Mon.  ,nasn,uch  as  the  moneys  ha.l  been  appropriated  for  it.  and  to  enter 
MUo  negotiations  with  N>w  Jersey  on  the  basis  of  the  commission.     But  an 

'/ftiV/.  \'o!.  V   v  part  I.  ^n   147-8. 


.if 

4% 


II  if 


I 


114  THE   LNITED  states:   A   r.L'DY   IN    INTERNATIONAL  ORGANIZATION 

t  iination  of  the  text  of  the  act.  which  is  a  revenue  bill  of  enormous  length, 
in  which  this  clause  is  an  item  as  difficult  to  find  as  is  a  needle  in  a  haystack, 
will  assuredly  cause  anyhody  who  consults  it  not  to  sit  in  judgment  on  the 
Board  of  Trade  for  what  might  otherwise  be  considered  as  an  inadvertence, 
oversight  or  slip. 

The  Board  then  t.ikes  up  and  discusses  the  subsequent  approval  of  an  agree- 
ment entered  into  between  New  York  and  Connecticut  for  the  settlement  of 
their  lK)undaries,  which  had  been  pressed  upon  its  attention  as  a  precedent 
justifying'  the  present  action,  regarding  which  the  Lords  Commissioners  say: 

W'l-:  further  beg  leave  huml)lv  to  represent  to  Your  Majesty,  that  the  lines 
of  partition  and  Division  between  Your  Majestys  province  of  Xew  York 
and  Colonv  of  Connecticut  having  lieen  run  and  Ascertained  pursuant  to  \\\t 
Directions' of  an  Act  passed  at  New  York  for  that  purpose  m  the  \  ear  1/19 
and  Confirmed  bv  his  late  Majesty  in  1723,  the  Transactions  between  the  sa:d 
province  and  Colony  upon  that  occasion  have  been  alledgcd  to  be  Similar  to, 
and  urged  as  a  precedent  and  even  as  an  approbation  of  the  matter  no\y  m 
Question  But  we  are  humblv  of  opinion,  that  the  two  Cases  are  m.atenally 
and  essentiallv  ditTerent.  The  Act  passed  in  New  York  in  1719  for  runnmg 
and  Ascertaining  the  Lines  of  partition  and  Division  between  that  Colony  and 
the  Colony  of  Connecticut  Recites,  "  That  in  the  Year  1683  the  Governor  and 
"  Council'of  New  York  and  the  Governor  and  Commissioners  of  Connecticut 
"  did  in  Council  conclude  an  Agreement  concerning  the  Boundaries  of  the 
"two  Brovinces;  that  in  Consequence  of  this  Agreement  Commissioners  and 
"  Surveyors  were  appointed  on  the  part  of  eacli  Government  who  did  actually 
"  agree.' Determine  and  ascertain  the  Lines  of  partition,  marked  out  a  Certain 
"  part  of  them  and  fixed  the  point  from  whence  the  remaining  parts  shouM 
"  l)e  run.  that  the  several  things  agreed  on  and  done  by  the  said  Commissioners 
"  were  ratified  by  the  respective  Governors,  entered  on  Record  in  each  Colony, 
"  and  in  March  1"()0  .approved  and  Confirmed  by  order  of  King  Willi.am  the 
"  third  in  His  privy  Council  and  bv  his  said  Majestys  Letter  to  his  Governor 
•*  of  New  York." 

From  this  Recital  it  Appears  to  Us  that  those  Transactions  were  not  only 
carried  on  with  the  participation,  but  Confirmed  by  the  Express  Act  and 
Autlioritv  of  the  Crown,  and  that  Confirmation  made  tlie  foundation  of  tlie 
Act  pas>i(l  bv  New  York  for  Settling  the  I'.oundaries  between  the  two  pr(n- 
inces  :  of  all  which  Authority  and  Foundation  the  Act  we  now  lay  before  your 
Majesty  appears  to  us  to  be  entirely  destitute.' 

The  New  Jersey  act,  therefore,  of  1747-8.  was  disalloweil  for  the  reason- 
set  forth  at  length  before  this  digression.  But  the  dispute  would  not  down, 
and.  as  the  initiative  of  New  Jersey  had  failed.  New  York  passed  an  act  on 
December  7.  1754.'  by  the  terms  of  which  the  dispute  was  referred  to  the 
adjudication  of  the  Crown,  and.  on  June  12.  1755.  the  Lords  of  Trade  in  an 
opinion  to  the  Lords  Justices,  acting  as  Regents  in  the  absence  of  the  Kinu 
from  F.ngland.  recommended  that  this  Act  !«  disallowed  for  the  objections 
stated  in  the  following  passage  of  their  recommendation: 

»  Documents  Rdalinq  1:1  th,-  Ciiloiiial  llislnry  of  Wit'  trrsey.  Vnl   vlii.  Part  1,  pp.  I40-15n. 
i  I  mrs  .if  \V;c-riir*  from  III,-  lllli  .V.ij'.  /7.<.'.  /"   '-'(J  Ma\  //'A-'  I  17ftJ>.  Vol.  ii.  p.  41. 


FURTHER   COLONIAL  PRECEDENTS 


115 


Act  is  to  sub.t,it  the  matter  in  dispute  as  hr  as  orK   r^  n         7  °  '^^'^  °^  ^^^ 

■mmmMmmm 

w  .rsh;  1  till  t ,         ;  -'  '""'  •^'■"'  "^"'Psliire.  with  liberty  to  eitlier  party 
who  shall  think  thcinselve^-  aggrieved,  to  appeal  to  His  Majesty  in  his  PrKv 
Loiincl.     The  Agent  for  the  Proprietors  of  Xe-.y  Jer  ey  Sclarcd  hims  I^ 
willing   o  concur  ,n  this  measure,  and  has  offered  to  giye?n,p[e  seatiu    Uii 
he  said  Proprietors  shall  and  vyill  defray  one  half  of  the  expenle  of  ;uch  a 

stZntsT".  'r /'^^^«^'"' °f  -^■'^^  ^'"^^^  ""t  being  authorised  by  his  Con- 
stitu.nts  has  declined  entering  into  such  an  agreement      We  would  there 

^n'r;^  w^oi^^ofV-^'^'s^'TT-  '"^'t  additio,^M^;;iiS^ 

V     .„  I  1       r    [^  ■  °^  ^'•"'^'  ^  "'■'^  directing  h  m  to  recommend  it  to  the 

Assembly  of  th.it  province  to  make  provision  for  defrayingone    nl    o7the 

h"'\hl.°  hnirbeTf.r"  ?-y""^--'\  Commission,  as'^^o're'aid  whene  e 
nis  .\iaj     shall  be  graciously  pleased  to  issue  it.' 

Owing  to  the  French  and  Indian  War.  the  Xew  ^  ork  Assembly  felt  itself 
unable  to  bear  its  share  of  the  expenses  in  running  the  line,  and  ihe  moneys 
n ere  not  appropnated.  However,  when  the  French  and  Indian  War  had 
practically  ended.  New  York  gave  its  consent  by  Art  of  December  11  176^  ^ 
to  the  adjustment  of  the  boundary  by  Royai  Commission  or  otherwise,  and 
agreed  to  the  payment  of  "  one  e.|u,-il  Half  i-art  of  the  loint  Fxpence  to  ac- 
crue on  the  hnal  Seulement  of  the  said  Controversy,  and  the  Boui.dar.  Lin. 
between  tiie  said  Colonies." 

The  Colony  of  New  Jersey  by  Act  of  February  23.  i;64.»  a  v,ar  after  the 
Treaty  ot  Peace,  did  likewise.  A  commission  Nvas  substituted  for  the  Cr,  ,wn 
on  Octol^r  /.  1/67,  consisting  of  thirteen  persons  chosen  from  the  di.Verent 

n^..  PP.  114-5;  see  also  Documents  Relj;!:,Vc::aZl^^]:,;^y  J/'?;^1^l;:^rVoi:\ C  p: 


.1 


Is 


ii*- 


116 


THE  UNITED  states:  a  study  in  international  organization 


colonies,  of  whom  any  five  could  act.  Seven  of  the  Commissioners,  with  John 
Jay  as  Clerk  of  the  Commission,  met  in  the  City  of  New  York  on  July  18, 
1769.  They  were  Charles  Stewart,  Hs(|.,  Surveyor  General  of  the  Customs 
for  the  District  of  Quebec,  President:  Andrew  F.lliot,  F-sii,,  Receiver  General 
of  Quit  Rents  in  the  Province  of  N'ew  York;  Samuel  Holland,  Rs(|.,  Surveyor 
General  of  Lands  for  the  Northern  District  of  .America;  .Andrew  Oliver, 
Es(|.,  Secretary  of  the  Province  of  Massachusetts  Ray;  Charles  Morris,  Fs(i., 
Surveyor  of  Lands  and  one  of  the  Council  of  .he  Province  of  N'ova  Scotia; 
and  Jared  Ingersoll,  Esq.,  of  the  Colony  of  Connecticut.  After  hearing  the 
evidence  presented  by  the  colonies  in  dispute,  four  of  the  commissioners. 
Messrs.  Stewart,  Oliver,  Elliot  and  Ingersoll,  present  on  Octol)er  7,  176"), 
rendered  a  major'ty  opinion,  and  two  thereof,  Messrs.  Holland  and  Morris, 
a  minority  opinion.  The  text  of  the  majority  opinion  is  not  uninteresting  in 
itself,  and  may  well  serve  as  a  model  of  proceedings  of  this  kind  : 

THE  AGENTS  on  the  part  of  both  Colonies,  having  offered  to  the  Court 
all  that  they  thought  necessary  or  proper  in  Support  of  their  respective 
Claims,  and  the  Court  having  Considered  the  Same,  DO  FIN'D 

TH.\T  King  Charles  the  Second  by  his  Letters  patent  l)earing  date  the 
twelfth  day  of  March,  1664,  did  Grant  and  Convey  to  his  Brother  the  Duke 
of  York,  All  that  Tract  of  Country  and  Territory  now  Called  the  Colonies 
of  New  York  and  New  Jersey ;  and  that  the  said  Duke  of  York  afterwards 
by  his  Deed  of  Lease  and  Release  bearing  Date  the  23d  and  24th  days  of 
June,  1665,  did  Grant  and  Convey  to  Lord  I'erkley  of  Stratton  and  Sir  Georjje 
Carteret,  that  part  of  the  Aforesaid  Tr.ict  of  Land  Called  N'ew  Jersey.  The 
Northern  Bounds  of  which  in  said  Deed  are  described  to  be  "  to  the  north- 
ward as  far  as  the  Northernmost  Branch  of  the  said  Bay  or  River  of  Dela- 
ware which  is  in  41  deg.  40  min.  of  latitude  and  Crosseth  thence  in  a 
Straight  Line  to  Hudson's  River  in  41  deg.  of  Latitude." 

We  further  find  amoung  the  many  Exhibits  a  Certain  Map  compiled  by 
Nicholas  John  \'ischer.  and  publi.shed  not  long  before  the  aforesaid  Grant 
from  the  Duke  of  York,  which  we  have  reason  to  believe  was  Esteemed  the 
most  Correct  Map  of  that  Country  at  the  Time  of  the  said  Grant,  on  which 
Map  is  Laid  down  a  Fork  or  Branching  of  the  River  then  called  Zuydt  Rivt 
or  South  River  now  Delaware  River  in  the  Latitude  of  41  deg.  and  40  nun., 
which  I'.r.Tnch  we  Cannot  doubt  was  the  I'.ranch  in  the  Deed  from  the  Duke 
of  York  called  the  Northernmost  Branch  of  the  said  River,  and  which  in  the 
Deed  is  said  to  lye  in  the  Latitude  of  41  deg.  and  40  min.  And  from  a  Care- 
full  Comparison  of  the  several  Parts  and  Places  Laid  down  on  the  said  Map, 
some  of  which,  more  Especially  towards  the  Sea  Coast  and  on  Hudson's 
River  We  have  Reason  to  believe  were  at  that  time  well  Known.  The  Dis- 
tance of  the  said  Branch  from  the  Sea  Shore  on  the  South,  and  the  Relative 
situation  of  the  same  with  regard  to  other  places  and  the  Lines  of  Latitude  as 
they  appear  to  be  laid  down  on  the  said  Map  at  that  and  other  places  in  the 
Inland  County :  We  are  of  opinion  that  the  said  Branch  so  laid  down  on  the 
said  Map  is  the  Fork  or  Branch  formed  by  the  Junction  of  the  Stream  or 
Water  Called  the  Mahackamack  with  the  River  Called  Delaware  or  Fishkill 
and  that  the  sair?  is  the  I'ranch  Intended  and  referred  to  in  the  before  men- 
tioned Deed  from  the  Duke  of  York,  as  the  Northern  Station  at  the 
River  Delaware,  wiiich  Fork  or  U:aneh  We  find  by  an  observation  taken  by 


FlRTHEk    COLONIAL    I'RECEUENTS 


117 


!    U 


We  arc  further  of  opinion  that  the  Northern  Station  at  Hiid<ionV  Rivnr 

son  s  R.ver  marked  hy  the  sai.i  surveyors,  In-inK  79  Q  ,!„;„!  27  nks  to 
*»^<=^-'h^-'  ona  Mendian  fron,  Sneydon-s  t?ouse.  ior^.^U^'^rU^'  '" 
l!oun,hrvnrl>    ;•!•      T  "■'  *'"'''   l^^-f^^rniination  of  the  lourt  That  the 

fc v:r\    h.£ncn/rf  Vr  "^'^  ''■'"  '^^'^'^  ^''  ""■  ^•'mi^of  the 

and  .  ,  rty    eve^^  ?f  forty-one  Degrees  twenty-one  Minutes 

of  fortyl;^ rgreesTs':b?vi'd"eSed.'"^  ^^  ^'"^  ^''"'  '""'^  '"  ^"^-  ^^'^'^^'^ 

As  to  the  subsequent  proceedings,  it  is  to  be  said  that  the  New  York  is- 
semhly  passed  at,  act  on  February  16,  1771,=  ratifying  the  jtul^^nent  .  f  ,' e 
Comm,ss,on.  and  that  New  Jersey  on  its  part  pas;ed  an  a.t  S  p.en  .e    26 

S;;tT, v'"   "'  °'  "^'"^  ''"■■'  ^■'"'^™''"^  ^"^^  j""^--'  '^  "-"'"-- 

m.SMon  conditioning  ,ts  acceptance  upon  the  allowance  of  the  New  \nrk  \ct 
by-  h,s  Majesty  ,n  Council.  Therefore  on  September  1.  1773,  the  Kin.  in 
Council  decreed  as  follows :  ^ 

whu:h^hath  been  tranLittec^i'lUc^;^;:;:^;  ISi'v^^^L''^ ''  "^"  ^"  ''"' 

Colont"  oVk'wSSk'nd  X^va  C-aesT '"\"^  ''f '■'"■""  L""^'  •'^•'-■-  »'- 
Titles  and  Possessions  "  ^     '"''"  °'  "^^^^  ■'"^'•>'  ='"'1  ^'^^  Confirming 

s;'T^d^:;n:;T^:;;;tS^  ;}.^:!:;on:i'^  i:::^  ;S;i:^'i^  ^'t-t-^ 

Report  as  their  o^on^!;"  ,•;  t,       v' U::^  ;i' SiJ^t  "! -"  '"'  '""^  "i'^ 
approved-  F  lis  Maies-v  t-.kin,T  ,Z  II'  "'^'"^"L''^"', -"^'t  wa>  proper  to  be 

.m.rve„„„„  „,  „„  li„.H  „,  Trade,  ended  i„  ,,ha.  may  U-  e^I.ed  "Sl;  t 
I  )^."/*-  ^"'IJjf'"-'".  \"ol.  ii,  pp.  769-70. 


il 


1I  jl 
l| 


Hi 


i     I 


» Hid 


rs^^7. 


■i 


118 


THE    IMTED  STATES:   A    STIDY   IN    INTERNATIONAL  ORGANIZATIDN 


Debt  to 
Litigious 
Rhode  IilanJ 


Jultice  to  the 
Small  State 


cision.  There  are,  however,  two  cases,  shorter  and  less  detailed,  and  which, 
with  slight  changes  in  the  caption  and  in  the  phraseology  of  the  opinion,  might 
properly  appear  as  judgments  of  the  Supreme  Court  of  the  United  States  in 
the  series  of  case>  to  which  Rhode  Islnnil  is  a  party. 

The  first  is  thai  of  Rhode  IsUmd  v.  Connecticut.'^  decided  in  1727,  in  which 
the  Iioundary  between  Rhode  Island  on  the  west  and  Connecticut,  its  more 
powerful  neighl)or,  was  decided;  and  the  second  is  that  of  Rhode  Island  v. 
Miissachtisettsr  dicided  in  1746,  in  which  the  eastern  Iwundary  of  Rhode 
Island  was  determined  in  its  favor  against  its  stronger  and  aggressive  neigh- 
bor to  the  east.  And,  w  ithout  stopping  to  analyze  these  cases,  models  of  their 
kind  and  of  judicial  settlement,  it  may  he  proper  to  premise  that  partisans 
of  judicial  settlement  are  deepiv  indebted  to  the  litigious  little  State,  not  only 
for  these  cases  but  for  the  seven  lawsuits  with  the  State  of  Massachusetts, 
decided  l)y  the  Supreme  Court  of  the  United  States  and  to  be  found  in  the 
official  reports  of  that  Trilninal,  by  virtue  of  which  the  northern  boundary 
of  Rhode  Island,  and  therefore  the  southern  boundary  of  Massachusetts,  was 
finally  determined.  If  the  Atlantic  Ocean  had  not  been  made  the  southern 
boundary  of  the  little  Stale  by  charter,  it  would  no  doubt  have  instituted  a  law 
suit  to  have  that  determined,  as  it  did  in  the  western,  eastern  and  northern 
points  of  the  compass.  It  thus  furnishes,  it  is  tjelieved,  the  unique  example  of 
a  State  having  submitted  all  disputes  concerning  its  boundary  to  judicial  de- 
cision, and  thus  having  its  bounds  settled  and  its  existence  preserved  by  decree 
of  court.  Justice  is  indeed  the  shield  and  buckler  of  the  smaller  States,  if 
they  did  but  know  it,  for  Rhode  Island  would,  without  the  shadow  of  a  doubt, 
have  been  swallowed  up  by  Connecticut  and  Massachusetts  had  their  land 
hunger  not  been  stayed  by  the  just  hand  of  the  judge.* 

>  .lets  of  tin-  P'kv  Council.  Colonial  Scries,  Vol.  vi,  p.  159,  §  344. 

'■'  ll'ui..  p.  J(i7,  S  4'"U. 

^  .'.n  avi'iiratc.  industrious  and  well  informed  writer  has  -  to  say  on  the  settlement  of 
disputes  of  this  kind  between  the  colonies ; 

■■  r.onnd.iry  disputes  hetwetn  the  several  colonies  were  of  even  more  pressing  importance 
th.nn  were  those  with  foreign  nations.  In  1700  none  of  the  colonies  had  its  limits  so  well  de- 
fined th:it  it  was  free  from  such  controversies,  and  as  time  went  on  these  questions  had  to  he 
settled.  It  was  difficult  for  the  interested  parties  to  arrive  at  a  satisfactory  agreement  with- 
out reioiirsf  t'l  some  outside  party:  consecpiently  the  Board  of  Trade  was  the  body  to  which, 
as  a  last  resort,  .ill  these  controversies  were  referred.  .  .  . 

"  As  ,tII  settlements  of  a  boundary  controversy  were,  of  necessity,  ratified  by  laws  passed 
hy  the  colnnial  lecisl.itiire.  any  such  settlement  could  be  invalid.ited  by  the  action  of  the 
Roard  of  Trade.  If  private  individuals  were  iniitred  in  their  property  interests,  they  had 
just  groiinils  for  a  complaint  to  the  king,  and  such  a  complaint  would  involve  the  boundary 
dispute  and  its  settlement.  If,  on  the  other  hand,  the  interests  of  the  crown  were  at  stake, 
it  had  to  be  made  a  party  to  the  settlement  or  it  would  refuse  to  recognize  its  validity.  Thus 
in  cither  case  the  (i.'estion  would  come  before  the  cro,>n  for  ratification.  .  .  . 

"The  regular  method  of  procedure  in  settling  a  dispute  was  to  secure  the  appointment  of 
a  royal  commission.  .Ml  the  imporf.'>nt  boundary  controversies,  such  as  those  between  North 
Carolina  and  Virginia  [The  commissii  us  for  settling  this  boundary  were  joint  tribunals,  ap- 
pointed partly  by  the  crown  and  partly  by  the  proprietaries.  See:  North  Carolina  Colonial 
Kecords.  vol.  i.  703,  716,  735.  750.  vil.  iii.  12.  1,.|,  North  and  South  Carolina  [Ihid.  vol.  iv, 
28.],  New  York  and  M.i<4 1  husetts  |  Prop.  «f,l  h<>  wt  carried  into  etecution.  See:  Pratt's 
Eoundiiriei  cj  .\'eu'  York  -.u!.  it,  88-225.].  and  the  iafter  province  atitl  New  Hamir.hirc  [Cam- 


ijll 


FIRTHER   COLONIAL   PRECEDENTS 


119 


■aw» 


Second,  as  to  appeals  from  ju.licial  decisions  of  a  colony  involving  the  u«i 

setting  asule  of  colonial  laws  and  the  reversal  of  decisions  of' colonial  c.nirts  ' """""* 

based  upon  such  laws. 

In  Um  the  colony  oi  Connecticut  passed  an  act  reRUJating  the  descent 
of  estates  of  persons  dying  intestate,  allowing  ,he  chil.lren  of  the  deceased 
females  as  well  as  males,  to  share  in  the  distril.ution  of  the  realtv    reserv- 
ing only  to  the  eldest  son  a  double  portion  instead  of  casting  upon  him  the 
realty  m  ,ts  entirety,  as  in  the  common  law  of  Kngland.'     The  charter  of 
Connecticut  allowed  the  colony  "  from  Time  to  Time  to  Make.  Ordain  and 
Establish    all    manner    of    wholesome,    and    reasonable    Laws.    Statutes 
Ordinances.  Directions,  and  Instructions.  n6t  Contrary  to  the  Laws  of  this 
realm  of  E„;/la,uL"  =     There  was  .no  reservation   in  the  charter   for  the 
transmission  of  the  laws  to  England,  there  to  be  approve.l  by  the  Crown 
before  they  went  into  effect,  or  to  go  into  effect  subject  to  l)e  set  aside  by 
the  Crown  within  a  certain  period. 

The  colonial  officials  elected  by  the  freemen  of  the  colony  were  not 
anxious  to  awaken  sleeping  dogs,  if  that  homely  expression  rather  than 
lions  be  applied  to  the  mother  country,  and  laws  claimed  to  be  in  excess 

uiit,'^"rT.'  '^•'"-     ^"'  ^'*'!''   V"'''  Colonial  Document,,  vol.  vi.  pp    8'3    9^11   a,„|   Ri„„i. 
Island  (The  commissioners  in  this  case  were  Cailw.illa.ler  Culdcn    \lir-.h    ,,  v     i  m  ,r 

LivmKston,  .Archibald  Kennedy,  and  Jan.cs  De  Lanc?v  of  \'iu   V  V      i       ^,1"'"'T"'  "l''  'P 
Nells.  John  Reading,  CoriieliuVXanlmrn  and  U  ill  a  n  vLtTi.)x-Ju?  "^""'";"'  ,•  "I'" 

It::^^:^''^!''^::,  [;^-v,,cope,^cras.nJ'j^ir^.i4p;.^^  {^  .Cii  o^::^ 

this  way.    fhese"com;,^:in  r]  w    e'^pr,;^^^  S'"'^ ■'•  -'^  -"'-!"' 

were  in  reality  special  courts  of  arbitration,  which  h.^d  pl^e'  ,0    e  .  e^  1^ re'A  oi     a,  i  ''ue' 

mission.  It  could  prosecute  _a  complaint  in  the  usual  manner;  an  I  if  i,s  wo  k  llu  ml  ann  i; 
irregmlar.  another  commission  was  issued  to  rehear  the  cisV     In  '  I    hi    H,.r  ^^    ■ 

dent  attempt  to  do  justice  to  all  parties  concerned  The  da         in  ,hi  r    ,    i n,       '   '" 

pardu,,-  changes  in  state  boundaries  is  hut  a  reco»,4;tion  of  t lu-    0     ,ant  practi^;    rf    1  e  p!,a7d 

cd..   [.Si,'^^'",flV  '       ■  "^    ""•"  "^  ^■"""•'•'"■"'-  f'"'.  /)    /^Vv  ,,,  ,ro6.  C.  J.  Hoadly 

-Thorpe.  Charters  and  Constitutions,  Vol.  1,  p.  5i3:  Toore.  p.  255. 


1 


120 


TIIK    1  NITEK  states:    A    STLDY    IS    JNTKHN  ATluN  Al.  tiH(iAN  1/A I  KIN 


It, 


of  this  Rrant  WdiiKI  reach  the  Kinp  in  Cinincil  nr  the  Hoard  of   Trade  thnni);!! 
priv.ite  parties  and  upon  private  initiative  if  at  all      In  this  case  the  trans- 
mitter was  at  hand   in   the  person  of  John   \\  inthmp,   son  of   Wait   Still 
Winthrop,  Major  (leneral  of  Massachusetts  and  Chief  Justice  of  its  Superior 
Court,  who  died  iiUestate  in  1717  owninj;  (urrsonalfv  niid  rc.illv  in  ("onnecti- 
ciu.  in  which  colony  he  hail  himself  l«cn  Nirn  a  son  of  the  (iuvernor  thereof 
Init  had  preferred  to  jjrace  Massachusetts  hy  his  presence.     John  Winthrop. 
tif  whom  larlvlc's  mother  would  •'    ihtliss  have  said,  as  she  said  of  her 
son,  "he  was  an  ill  man  to  live  wah,"  had  a  sister,  .\nne,  who  married  a 
well  connected  Imt  not  too  well  to  do  jK-rson  hy  the  name  of  i.eclunerc,  who 
resided  at  that  time  in  ISosion.     t)n  U-lialf  of  his  wife,  he  claimed  one  p-)r- 
tion  of  the  rc.dly  of  the  f.itlicr-iii-Iaw's  Connecticut  estate.     Winthrop  was 
appointed  administrator  hv  the  Court  of   IVoli.ites  for  the  Co\nUy  of  New 
London,  Colony  of  Coiuiecticut,  in  which  the  realty  was  situated,  and,  con- 
tending that  he  was  entitled  to  the  real  property  according  to  the  doctrine 
oi  primofjenittire,   olitainitiR  in  the  common   law  of    I'-n^land,  did  not   in- 
clude the  realty  in  his  inventory,  ps  he  should  have  (lone  according  to  the 
Connecticut  act  of  16'>*)  for  the  settlement  of  intestate  estates.     The  Court 
of  I'roliatcs  therefore  rejected  the  inventory  and  Winthrop,  as  administrator, 
thereupon  appealed  to  the  Superior  Court.     Pendinp;  the  appeal,  Lechmere 
applied  to  the  Court  of  I'Miatcs  for  new  letters  of  administration,  which, 
111 'w  ever,  denied  his  motit)n.     Thereupon,  on  appeal  to  the  Superior  Court, 
having  the  two  appeals  la-fore  it  at  one  and  the  same  time,  it  decided  both 
of  them  against  W  nthrop.     The  General  .\sseml)lv  refused  to  intervene  in 
his  Inhali  or  allow  an  appeal  to  the  King  in  Council.     The  appeal,  however, 
was  made  hy  Winthrop  and  allowed  hv  the  King  in  Council,  and  the  case 
on  appeal  referred  to  the  Committee  for  Hearing  .Appeals  from  the  Planta- 
tions. 

Defore  this  Connnittee  Sir  Philip  Vorke.  then  .\ttorney  General  and  later 
Lord  Chief  justice  of  the  King's  Hench  and  Lord  High  Chancellor,  known 
to  lawyers  as  Lonl  Hardwicke  and  to  the  I-"nglish  speaking  world  as  the 
greatest  of  ec|uitv  judges,  and  Sir  Char'es  Talbot,  then  Solicitor  General, 
later  Lord  Chancellor  Tallxit,  less  known  perli.ips  but  hardly  less  deserv- 
ing than  Hardwicke,  who  succeeded  him  in  the  Chancellorship,  appeared 
on  behalf  of  Winthrop.  On  behalf  of  Lechmere  one  Willes,  supposed  to  l>e 
Sir  John  Willcs,  Liter  .\ttornev  General  and  Lord  Chief  Justice  of  the 
Common  Pleas,  and  an  Lnglish  barrister  by  the  name  of  Barton,  appeared. 
\\  i;houl  referring  the  apjieal  to  the  Board  of  Trade,  as  was  usual  in  such 
ca>e>.  the  Committee  for  Hearing  .\ppeals  from  the  Plantations  heard  coun- 
sel for  plaintiff  and  defendant  and,  after  argument,  recommended  that  the 
Connecticut  act  of  WJ9  for  the  settlement  of  intestate  estates,  and  subse- 


ri'llTHER   COLONI.M.    PRECEDENTS 


121 


qt,ent  acts  .n  th-  case.  Iw  declared  null  and  void  as  o.i.trarv  t..  the  nm,,,,.,,, 
aw  .,f  iMiuIatui.  ami  that  the  decisi,,,,,  .,f  the  (  nniucticut  courts  as  against 
Winlhrops  contention  and  in  lavor  oi  I  .rhnaTc  and  his  wJiV  !«•  rcvcrM-d 
and  set  asi.le  as  hased  upon  the  Connectia.t  statutes  contrary  to  the  charter. 
or,  as  we  should  say,  as  unconstitutional. 

As  the  .lecree  of  the  Kin^  it.  Council  approviufj  the  recon.nundat.on  of 
the  l.or<Is  ot  Appeal  was  well  ktioun  to  the  colonics,  exten.lin^,-  the  i„d>.ml 
power  to  acts  of  the  legislature  as  well  a>  to  judRtnents  of  a  colonul  court. 
an.l  ,s  the  fjreat  precedent  for  investing  the  Supreme  Court  of  the  l„itcd 
States  with  the  power  of  prouounciuf;  laws  uno.n.i,iui,on;,l  and  rcv.TM.;.- 
decisions  ot  c.urts  of  justice,  whether  of  the  State  or  of  the  Cinted  States" 
base,l  upon  such  acts  of  Congress  or  such  provisions  of  State  constitutions' 
the  tnatenal  portion  of  the  report  of  the  I^,rds  of  Appeal,  cnliri.ied  hv  the- 
King  in  Council,  is  given  in  its  exact  words: 

1,„  J'r'I"  ^'"■'■''''I'*-  ;'!'""  '1'"^  "-•  'sideration  of  the  who!,.  „,.-,ttrr  d.,  -.lt.-.- 
humhiy  to  rc,.ort  as  their  opinion  to  your  Majesty.  tl,,„  ,|,e  s.,,d  a. ,    ,   \  , . 

to  the  lau,  of  l:unhu,\  m  regard  ,t  makes  land,  of  iuh.ri.ar,. -•  d,,tr,h„r.l  1^ 
as  .er^onal  estates  aiid  ,s  not  warranted  l.y  the  ,  lurter  of  that  .  olonl' a!;;  ',',',  ; 
tru   s.ii.l      .   .  sentences  .   .  .   rejecting  the  inventory  .         !»■.  ius,' „  ,h.l  ,,t 

S'M;r,s.r  "^"."^  ■"•"""''  '■-'^"'^  ■  •  -■> '-  ^'"  --''■'   ■  - 

to  tlR  said  Ihoniasand  Anne  Urhniere  sh.nild  al^o  |,e  rev.rs.-d  and  .  t  a-nl, .' 

Commentary  upon  this  case  omM  .,„Iy   ueaken   it,   f,.rre  .and  elfe,  t   as 

the  vounger  Pitt  is  reporte.l  to  have  .ai-1  „f  i;rsl.ne',  -pee.  h   ,.,;].,.,„;.  ,l,at 

ot    1- ox    that  It  .,nly  repeate.i  an<i   ueakened   the   arguments   of   ,h.-.t    ri.lit 

nonoralile  gentleman. 

i;y  the  charter  of  June  2G.  1M.>.  ^le  second  I.ord  l;alt,m,.r-  ua-  -ra,  nd 
the  province  n„w  the  State  of  Marylan,].  l,o„nde.l  on  the  ,„  r,h  h-,  ih.- 
40th  parallel  o,  North  Latitude,  on  the  we-t  and  ..uhue,,  hv  a  Iitie  sou,!, 
otthis  parallel  to  the  fartlu-t  source,  of  the  I'otomac.  and  die.,..  ,1,.. 
lurther  hank  of  that  river  t..  Chesapeake  Ilav;  on  the  s,„i,!,  l,v  a  '  nr 
across  the  I!ay  and  peninsula  to  the  .\tlant.c  Ocean  ;  and  on  tlie  ea-t'l,.  t'ha- 
Ocean  and  Delaware  liay  and  River.- 

[ ,1. 93 J;    ''"'  '"•'•"-"• '' ' '-^'-^'r.us /.,,:.,..„  „:,:;:;y  ,> 

lJt:"ti,  as  follows  ■ '■ 

"  \I1  that  i'art  of  tin-  Peninsula,  or  Onr.r.r.L,..  lv„;i,  j„  ,i.,   ,>,„ 

there  f  !.>  a  Ki^-ht  Line  drawn  fr-.m  tht  l'r.,i„.,iitr,-i    „r     l,-^''  I  ■ ,-' 
!.if.:ate  ■:;».-,  ihf  l;a>  afort-auj,  i  rar  tl,c  i<ner  uf  U  ,;.|.,.,    ...,',!„  '\\,':,' 
on  the  Ha-,     y,.!  U.wetn  tha-    Ho  :r,-Jarv   -n  th.    ^.,   ,h    :.,,„,,,,   ,     ,  , 
"■  = '•■  N'Tth.  «h,d,  l,e,h  :-T,.ier  th,-  I  ,,n'Mh   !.,■....(    ■ 


"]     "1 . 

'm<  r\!  an 


■  ■:    If 


"iil  ■- 


II  1.  |i>.  Iijir 
.•> A.I. 

.  I..IMmI|..imI 


ii: 


HI 


fl'OCtllih 


dii   \\:.,x   ')■  ra- 1   M   L. 


12J 


Till 


CNirKn  srATFs:  a  stimiy  in  intf.hnaiiun  \i.  (■N<.A\i/AriiPN 


On  Mnnh  14.  \(tH\.  a  rhartcr  was  grantoil  to  William  Pcnii  of  the 
tract  <il  tt-rritory  now  known  a'*  IVnnsylvania  in  honor  of  it>  first  proprietor, 
inclii.Iiiif;,  as  riaimcti  by  IVnn.  thr  three  lower  counties  now  known  as 
and  forming  the  State  of  IVIawnre  The  territory  was.  according'  to  the 
charier.  "  iM.tmiieil  on  the  I'ffst  l.v  fi,-la7i,irr  River,  from  twelve  Miles  Dis- 
tance N'orthwards  of  Xruritstl,-  Town  unto  the  three-.ind-fortieth  Deiirec 
of  Xorihern  Latitude,  if  the  said  Kiver  i.  th  extend  so  far  N'orlhw.inl:  hut 
if  the  saiil  K'iver  shall  not  extcnil  so  far  N'orthward.  then  Iiv  the  said  Kiver 
so  i;ir  as  it  iloih  extend;  and  irom  tlie  Head  t)f  the  said  River,  the  i'astern 
Itoiinds  are  to  k"  determined  hv  a  Miridian  Line,  to  l)e  drawn  from  the 
Head  of  the  said  River  unto  the  said  I'orty-third  ne(,'ree  The  said  [.and 
to  extend  Westward  f'lve  He^rees  in  LdiiKiiude,  to  lie  computed  from  the 
saiil  l-.istern  Mound-.:  ami  the  said  Lands  to  U'  JKiunddl  on  the  North  hv 
the  I!e.L;imiiiit,'  of  the  Tiiree-and-iortieth  Decree  of  .Vorthern  Latitude, 
and  on  the  South  hy  a  Circle  drawn  ai  twelve  .Miles  DiMancc  from  .V,Ti- 
liisllr  Vorthwanl.  an<!  Westward  unto  the  i!e);iniiiii^»  of  the  Fortieth  Deforce 
of  .Viirtliern  Latitude,  and  then  hy  a  stniight  Line  We-tward  to  the  Limits 
of  L.njjitude.  alKn-e-mentioned."  ' 

It  will  lie  observed  that  this  >;rant  iloes  u<<\  include  the  town  of  .\ew- 
castle  |)ut  U'Kins  at  a  point  twelve  tii'le^  to  the  nori:!  thereof.  It  thus  ex- 
cludeil  the  three  lower  counties,  or,  in  sliurt.  tiie  State  of  Delaware.  William 
Lenn's  claim  to  Delaware  i>  lia^il  <ipim  snl»ei|ueMi  transactions.  On  \u^u-t 
J4.  loSJ.  he  i)urcha^ed  a  quit  claii!  I'nw  the  Duke  .if  Xurk  to  tlio  Lands  west 
of  the  Delaware  i^iver  cnilirKcd  m  the  tyrant  oi  Charles  II  of  March  IJ, 
1<><>4.  to  Jaincs.  i^nke  of  ^  rk.  and  the  conlinnation  of  that  ^mnt  hy 
letters  patent  dated  Juii.  '''.  .74.  fr  .m  Charles  II  to  his  brother,  he  Duke 
of  \  ork. 

lo  the-  lavnieti  it  u  uld  appear  that  Pennsylvania  could  not  extend 
l)eln\v  40  Xiirth  l.atuucii-,  nasmu.  h  as  the  province  of  .Marvland  was  de- 
clared hv  Us  charter  '•'■  1()3J  to  ixtend  to  that  point,  and  that  degree  of 
latitude  was  '  ^ew:-e  (.dared  to  In-  Us  northern  Ijoundary.  It  is  true  that 
the  ^'raiit  di  -  harle-  .1  ti  his  l.rother.  the  Duke  of  N'ork.  of  "all  the  main 
land  i.t  .\'tw    ljij,'ian<i  .   .       and  al    the  Ian.,  from  the  west  side  of  L'onnecti- 


tuiuirwrittin  that  -  t.  >,;.  pu^Mll^:  I'rom  the  =uid  Hay.  called  Delaware  Uav.  in  a  rinht 
I.i::f.  |.y  iht-  iJ.xrr-  .1 1.?--.  ,i  ..  ;;i:t..  t:  .■  iric  nuTidiaii  oi  '.!'.i  tir^t  l-'nnitain  of  the  Kiver  ut 
raii..»iiiails.  Ihcncv  .erizmn  io»ard=  ilie  5-.uth.  nnio  the  inrtlicr  Hank  ot  the  said  River. 
.It.  .  I  ll.nuiii;  \',i'  .  iTTK'  .  .  tht  Wot  .m  ;  S.  iili.  ii>ii.>  a  cert.iiii  I'l.ice  called  Ciii<|uack.  situate 
near  the  Moitli  :  tiir  aid  Kiver.  wlurr  it  dise-iil...i.iie4  into  the  afuresai.,  ISay  of  Cliisa- 
{.earvc,  and  theme  iv  the  ii.irtrst  Line  iinf-  the  atiresai.i  rroitiontorv  iir  I'lacc.  called  Wat- 
kin:*  i' 'int:  >'.  that  the  »-ho;r  met  oi  land  divi,led  'iv  the  I. me  alnresaid.  between  the  main 
(-V,.in  ,nnd  W -itkin"-  Point,  .into  the  I'n.n-.  .nti.rv  called  Cape  Charles,  and  e\<--v  the  Xp- 
perdaKC.-  tier  ..t,  may  emirel.v  remain  e.\cei<ied  for  ever  to  I'.S.  our  Heirs  and  ^  .r.  lessors." 
I  N  T;:.rpi  Til.  ,-dcral  and  Slate  Conililulums.  Colonial  Lajis.  fic.  of  the  t.  nil.it  dilates 
Ifn.  \'-\.  lii,  p.  I'v."* 

p.   1- 


t  t  HHiyttunm,  1/0&,    vol. 


riKTIIER   COLONIAL   I'RECCDENTS 


12J 


cut_  to  ye  east  suJe  of  Delaware  Hay.  confirmed  l.y  the  letters  patent  of 
16/4.  „K|,„le,|  Delaware,  or  was  dain.e.I  to  <lo  so.  IVnn  was  anxious  to 
secure  the  tract  m  land  from  his  httk-  city  of  Philadelphia  on  the  Delaware 
Kiver.  and  thniu^h  which  the  fortieth  decree  of  north  latitude  ran.  to  the 
mouth  of  the  Delaware  Hay.  some  ninety  miles  to  the  south,  and  he  t.jok 
care  to  purchase  an.l  acquire  the  title  to  this  tract  daime.l  l.v  the  Duke  of 
York  under  the  two  ^^rants  in  .|.,estion,  (H.  the  other  hand,  the  proprietor  of 
Maryland  was  anxious  to  have  his  pr.n.nce  extend  to  the  fortieth  .h-rec 
of  north  latitu.le  and  W  U.umlcd  on  the  north  throughout  its  entire  ev-nt 
by  that  parallel  oi   latitude. 

Here  was  a  .h,pute  involvinR  a  v,  ,t  domain,  claimed  l.v  Lord  I'.altimore  iv„,.v. 
under  a  charter  of  163.'  Rrantcl  l.y  Charles  I.  to  which  \Villiam  I'e.m  laid  i'^''-'"- 
claim  under  a  charter  Rranted  l.y  Charles  U  in  1664      The  title  of  the  son  was 
preferred  to  that  of  the  father,  contrary  to  the  time  honored  maxim  of  the  law 
prior  in  ti-iiif>of,\  potior  in  jim'. 

The  Duke  of  York  appears  to  have  doubted  his  title  to  the  three  I-.uer 
counties,  or  at  least  thoufiht  it  well  to  have  whatever  cloud  there  iniK'ht  Ik: 
upon  his  title  cleared  up.  Ik-  therefore  appli«l  to  his  nnal  brother,  (baric, 
II.  lor  the  ;;rant  of  the  counties,  which  appears  to  have  k-en  ina.le,  and 
which  woul.l  mure  to  WnnS  k-netlt.  altboUKh  it  mi^ht  have  been  an.l  uas 
contcn.led  that  the  ^rant  to  the  Duke  of  York  sub..e.|uci.t  to  his  sale  and 
convevance  oi  the  same  territory  to  I'enn  was  an  evasion,  that  the  title  was 
not,  at  the  tune  ol  the  earlier  transaction,  in  the  Duke,  and  that  llicrei<re 
It  could  not  j.ass  to  his  grantee 

When  the  news  of  the  pn.pose.I  grant  of  the  lower  counties  to  the  Duke 
of  y,rk  kva.ne  k..„wn  to  Lord  Italtiniore,  he  praved  that  it  shoul.i  not  U- 
made,  ,n  that  the  territory  ,n  .,ue>tion  was  conipn.,c.l  within  In,  pnnince 
Jaltimores  petition  was  referre.l  to  the  Lords  Commi,,iuiiers  lor  Trade  and 
I  lantations.  who.  under  date  of  .\uvenil.er  13.  16.K5.  reported  that  "  Having 
examined  the  matters  in  difference  between  the  Lord  Baltimore  an.l  William 
enn,  Ls.,..  on  k-half  of  His  then  Majesty,  concerning  a  tract  of  land  called 
Delaware,  they  tound  the  land  intended  to  l>e  granted  to  Lord  Ikiltimore 
was  only  lan.ls  uncultivated,  and  inhabited  bv  savages:  an.l  that  the  tract 
ot  land  then  in  dispute,  was  inhabited  an.l  planted  bv  Christian,  at  and  Ih.- 
lore  the  .late  ot  the  Lor.l  Caltinu.re's  patent,  as  it  ha.l  ever  U-en  mi.cc  to 
that  time,  and  continued  as  a  .listinct  c.lony.  from  Marvlan.l,  m,  that  their 
Lordships  humbly  ofTered  their  opinion,  that  for  av.mJing  further  d.iur- 
ences,  the  tract  ot  lan.l  l>in-  U-tween  the  river  and  the  eastern  -ca  on  the 
one  M.le.  an.l  Chesapeake  I5av  on  the  other,  be  .livi.ie.l  into  e.|ual  part^  bv 
a  hne  from  the  latitu.le  of  Cape  Henl.-pen  to  the  4<Hh  .legree  .„■  noflRin 
latitude:  an.l  that  .me-h.-ilt  tli.T.-if    i, •;.,.,  ,.i,  ,.      > 

— .••••.-,   •-•.•Mar-;-   t:it.-  i;;iv 


'(.laV.  ale    .ili'i 


124 


THE   UNITED  STATES:   A   STLDY   IN    INTERACTIONAL  ORGANIZATION 


the  eastern  sea.  be  adjudged  to  belong  to  his  Majesty,  and  the  other  half 
to  Lord  Baltimore." ' 

This  report  His  Majesty  approved,  it  was  also  affirmed  in  1709  by  Queen 
Anne  in  Council,  and  by  this  interpretation  of  the  grants  in  question  Penn 
would  acquire  that  part  of  the  three  counties  Ixjrdering  on  the  Delaware 
River  and  the  ocean  as  far  south  as  Cape  Henlopen.  and  Lord  Baltimore 
the  western  half  thereof.  The  boundaries,  however,  would  remain  to  be 
run  and  marked,  and.  after  much  delay,  an  agreement  was  entered  into, 
dated  May  10,  1732,  between  Penn's  sons,  on  the  one  hand,  and  the  then 
Lord  Baltimore,  on  the  other,  providing  for  the  determination  of  the  line 
by  commissioners  on  or  Ix-iore  Christmas,  1733.  The  line,  however,  was 
not  drawn  Iwfore  the  expiration  of  this  time.  The  Penns  thereupon  peti- 
tioned the  Privy  Council  to  have  the  agreement  executed,  but  the  Committee 
for  Hearing  Appeals  from  the  Plantations  recommended,  on  May  10.  1735, 
"  that  the  Consideration  of  the  said  Report  and  Petitions  should  be  adjourned 
until  the  end  of  Michaelmass  Term  next  in  Order  to  give  an  Opportunity 
to  the  said  John  Thomas  and  Richard  Penn  to  proceed  in  a  Court  of  Equity 
to  obtain  relief  upon  the  said  .Articles  of  Agreement  so  insisted  upon  by 
them  according  as  they  shall  l)e  advised."  -  Therefore  the  Penns  filed  their 
bill  in  e<|uity  on  June  21,  1731.  for  the  specific  performance  of  the  articles 
of  the  agreement. 

In  1745  Lord  Chancellor  Hardwicke.  Iiefore  whom  the  case  was  hetfrd, 
thought  the  bill  should  l)e  amended  by  making  the  Attorney  General  a  party 
on  btlialf  of  the  Croun.»  As  amended,  the  bill  was  heard  and,  in  1750.  the 
specific  performance  of  the  articles  of  agreement  was  decreed  by  Lord  Hard- 
wicke.^ lor  present  purposes  it  is  sufficient  to  say  that  the  plea  to  the  juris- 
diction of  ihe  court  taken  by  Lord  Baltimore  was  overruled,  and  properly, 
for  ahliough  the  lands  lay  be>(.n(l  the  jurisdiction  of  the  court,  the  parties 
plaintiff  and  defendant  were  before  it.  and  as  «|uity  acts  in  pcrsoncm  they 
could  properly  Ije,  and  they  were  ordered  in  England  to  perfonn  the  act  in 
America. 

This  is.  however,  a  matter  of  e(|uity  practice  and  procedure.  The  im- 
portant point  for  us  is  that  the  Privy  Council  refused  to  assume  jurisdiction, 
and.  by  means  of  commissions,  to  determine  the  iKnmdnries  in  dispute,  since 
there  was  an  agreement  between  the  parties  on  the  very  question,  enforciblc 
in  equity.  There  was  no  neeil  to  resort  to  the  King  in  Council,  l>ecause  the 
parties  had  their  day  in  court.     The  tpiestion  was  therefore  settled,  upon 

*  ClialnuTS,  Ol'mions  of  Eminent  I.a-.cvcrs.  pp.  86-7. 

2  .  Uls  rf  (he  l'riT\  (  ,)tt>iri7.  Colonial  Series.  \'o\.  iii,  p    336 
VoK  27,"p   li32i"'''  """"""'■'■  <R"'«««^y  'e>nP-  Hardwicke,  hZ;  Reprint,  English  Rtforts. 

*  Penn.  v.  Lord  Baltimore  (1  Vescy  Sr.,  444). 


■ii 


FURTHER  COLONIAL  PRECEDENTS 


125 


great  deliberation,  by  the  first  of  English  Chancellors,  that  boundaries  be- 
tween provinces  as  large  as  kinj,'doms  did  not  need  to  l,e  settled  by  force  of 
arms:  that  disputes  of  this  nature  were  susceptible  of  judicial  determination, 
and  that  an  agreement  to  settle  the  dispute  and  to  draw  the  boundaries  in  a 
particular  manner  made  the  question  judicial,  to  be  passed  upon  in  a  court  of 
justice,  although  it  might  have  been  considered  political,  in  the  absence  of 
an  agreement,  and  as  such  Ijeen  passed  upon  by  the  King  in  Council 

The  case  of  Pcnn  v.  Lord  Baltimore  was.  therefore,  a  precedent  for  the 
framers  of  the  Constitution,  clearly  pointing  out  that  political  questions  would 
become  justiciable  by  an  agreement  to  settle  them,  which,  when  made  coul.l 
l)e  interpreted  and  carried  into  execution  by  a  court  of  justice.  It  was  quoted 
as  such  m  the  leading  case  of  Rhode  Island  v.  Massachusetts  ( 12  Peters.  657). 
decided  in  1838.  in  which  decision  the  distinction  here  taken  was  announced 
and  the  procedure  liefore  the  King  in  Council  recognized  as  a  precedent  for 
investing  the  Supreme  Court  with  jurisdiction  of  controversies  l)etween  States 
More  recently  Chief  Justice  White,  in  delivering  the  opinion  of  the  court  in 
Vmnnia  v.  West  Virqinia  (246  U.  S..  565.  597). •  decided  in  1918.  thus  re- 
ferred to  the  case  of  Rhode  Island  v.  Massachusetts  and  the  proceedings  in  the 
Privy  Council  as  a  precedent,  and  gave  to  each,  as  such,  the  stamp  of  his 
approval: 

Bound  by  a  common  allegiance  and  absolutely  controlled  in  their  exterior 
relations  by  the  mother  country,  the  colonies  before  the  Revolution  were  vet 
as  regards  each  other  practically  independent,  that  is.  diMinct  one  from  the 
other  Their  common  intercourse,  more  or  less  fre,,uent.  the  contiguity  of 
thejr  boundaries,  their  conflicting  claims,  in  many  instances,  of  authorh y  over 
undefined  and  outlying  territory,  ol  necessity  brought  about  conflicting  con- 
entions  between  them.     .As  these  contentions  became  more  and  more  frnZ- 

eulinVitnr.'""^  ^'  ''"''•  "^'^  "'^"^^">-  f°^  the  creation  of  some  means  of 
settling  them  became  more  and  more  urgent,  if  phvsical  conflict  was  to  be 
avoided.  And  for  this  reason,  it  is  to  be  assumed,  it  early  came  to  pas<  that 
clitTerences  between  the  colonies  were  taken  to  the  Privy  Council  for  settle- 
ment and  were  there  consi^dered  and  passed  upon  during  a  long  perio.i  of 
years,  the  sanction  afforded  to  the  conclusions  of  that  body  being  he  entire 
power  of  the  realm,  whether  e.xerted  through  the  medium  of  a  roval  decree  or 
legislation  l,y  Parliament.  This  power,  it  is  undoul.tedlv  true,  was  principally 
called  into  p  ay  in  cases  of  .lisputed  boun.larv,  but  that  it  was  applied  .'lo 
fnl  !L'""-'  '""I  °^  '"  '"'•'^■i-'"--'"  «Sainst  a  colony  concerning  the  wrnng- 
r.  ,  T  rr""  ^'T'^^'  ':•'■  ''^'  ''°'°">'  ""''K''^  to  '«^'""K  t"  •""'•  >>  not  dis- 
fhe  nu-  r  r  ^r"'"'  "'.""!'""  'I'  ''',  '^'  '^'■'•'"t"  '"'tween  the  colonies  and 
the  power  to  dispose  of  them  by  the  Privy  Council  was  stated  in  Rhode 

fn  d;e  autio:v"'"'r''''  P  '-"'^'^^  ^•'^-  '•'^'•"■'  ^"'l  -*"  be  found  reviewed 
m  the  autlionties  referred  to  m  the  margin 

wer«  iverln''  .'*r°'"''.7  ^''"^'^  '""'  "^"  '"'^"'""^  "ith  tlie  mother  country 
were  severed,  indi.spiit.ibly  controversies  between  some  of  the  colonies  of  the 
greatest  momem  to  them,  had  been  submitted  to  the  Privy  Council  and  were 

-  A'v  Scott.  Judicial  StUUment,  V«.|.  ii,  pp.  |751-7.i. 


A  Political 
I'ispute 
May  Recome 
Justiciable 


h 


f 


II! 


.!._ 


i 


126  THE   UNITED  STATES:   A   STLDY    IN    INTERNATIONAL  ORGANIZATION 

undetermined.  The  necessity  for  their  consideration  and  solution  was  ob- 
viously not  obscured  by  the  struggle  for  independence  which  ensued,  for,  by 
the  Ninth  of  the  Articles  of  Confederation,  an  attempt  to  provide  for  them 
as  well  as  for  future  controversies  was  made.  Without  going  into  detail  it 
suffices  to  say  that  that  article  in  express  terms  declared  the  Congress  to  be 
the  final  arbiter  of  controversies  between  the  States  and  provided  machinery 
for  bringing  into  play  a  tribunal  which  had  power  to  decide  the  same.  That 
these  powers  were  exerted  concerning  controversies  between  the  States  of  the 
most  serious  character  again  cannot  be  disputed.  But  the  mechanism  de- 
vised for  their  solution  proved  unavailing  because  of  a  want  of  i)ower  in  Con- 
gress to  enforce  the  findings  of  the  body  charged  with  their  solution,  a  de- 
ficiency of  jx)wer  which  was  generic,  because  resulting  from  the  limited  au- 
thority over  the  States  conferred  by  the  Articles  of  Confederation  on  Con- 
gress as  to  every  subject.  That  this  absence  of  power  to  control  the  govern- 
mental attributes  of  the  States,  for  the  purpose  of  enforcing  findings  con- 
cerning disputes  between  them,  gave  rise  to  the  most  serious  consequences, 
and  brought  the  States  to  the  very  verge  of  physical  struggle,  and  resulted  in 
the  shedding  of  blood  and  would,  if  it  had  not  been  for  the  adoption  of  the 
Constitution  ri  the  United  States,  it  may  be  reasonably  assumed,  have  ren- 
dered nug?.'iory  the  great  results  of  the  Revolution,  is  known  of  all  and  will 
be  found  stated  in  the  authoritative  works  on  the  history  of  the  time. 

The  views  of  the  Chief  Justice  can  not  be  gainsaid.  If,  however,  con- 
temporary exjxjsition  is  preferred,  as  to  the  nature,  function  and  role  of 
the  Privy  Council  in  the  administration  of  justice  and  the  maintenance  of 
order  upon  the  basis  of  law,  it  is  at  hand,  for  in  the  seventeenth  article  of  the 
Constitution  of  Delaware,  adopted  on  Friday,  September  20,  1776,  by  the  three 
lower  counties  of  Pennsylvania,  forming  "  The  Delaware  State,"  as  it  was 
then  called,  it  is  provided  that:  "  There  shall  be  an  appeal  from  the  supreme 
court  of  Delaware  in  matters  of  law  and  equity,  to  a  court  of  seven  persons, 
to  consist  of  the  president  for  the  time  l)eing,  who  shall  preside  therein,  and 
six  others,  to  l)e  appointed,  three  by  the  lej  olative  council,  and  three  by  the 
house  of  assembly,  who  shall  continue  in  office  during  good  behaviour,  and  be 
commissioned  by  the  president  under  the  great  sea'  vhich  court  shall  be 
stiled.  Thr  Court  of  Al^fi'ds.  and  have  all  the  authc  ,•  and  powers  hereto- 
fore given  by  law  in  the  last  resort  to  the  king  in  coun,..!,  under  the  old  gov- 
ernment." ' 

1  The  Conslitulionj  of  the  Sez-eral  Indefendent  States  of  Ami-rica,  ITSl.  p.  111. 


VI 
ESTABLISHMENT  OF  STATE  CONSTITUTIONS 

0/  .\altons:  or  Pniidfi.s  of  the  Laze  of   Vn/ur.      j**;-  ?^^' ,   *  "•  ''''  '  <"''''•  7^*^  /-aw 

A...  .,^.. ..,,„,  .,i,.  ,,,-,^/  &.;^?^;^7-j^-.;i;;^^^,:::^,S.^; 

undoubtedly  .„ok  thcir  Rromhin\hcsTJl''T^^^^^^  f^'V^'^"  »°«^'y 

Amenque,  t  Vols.,  iHjs,  /„/.  /,  |,   jg  )  (-"fJ^w  at   1  ocqucitlle.  Dc  la  Uemocralie  en 

on;Aart  oTSU\talt'uir:di::u.V'^^^^^^^^^  -^"A"  f-  -'■   Twemy- 

Ephraim  Wood  Junr  being  MoVUrafor  S  unSn  mn,";^"'.^''?'  P^'^,"'  0'^'°^'*^.  '776. 
Representatives  is  not  a  proper  Bodv  tr.  form  ,  p""»"!™o."s'y,  ti'at  the  Present  House  of 
Chnse  a  Committee  of  fi^lZVn  fo  make  inswe?  ^>  ?hl' n'°".'°'  A'"'  S'^"*  '^"^  Voted  ^^ 
Representatives  of  this  State  and  Tc'e  the  V^L2  f°'',u'T''^  ^^  "'<=  "°"*e  of 
a  suitable  body  for  that  Purpas.  the^^  on  folwZ  »'^  Vl*''  ^own  thinks  them  not 
mentione<l.  viz.  Ephraim  Wood  Jnnr  Mr  Nathan  R^n.Tr  ^7^"  "''„  Committee  above 
Buttrick,  and  James  Barrett  esqr  And  the  rnmmit..  d  '  ^"h  ^J"""  '^a"''"-  Col.  John 
being  Read  several  times  o  c'rlor  C^^idlra^i^H  hen  u^,°'r'*  the  following  Draft  «1tich 
accepted  unanimously  in  a  very  full  Town  meet  n  ''^  »  ^"""^  '*"°''«  ^^  ^esoU<:  and 
"Resolved  1st.  that  this  State  I^LatP^-TZ^^H^"'"""  ,"^  »*  followes- 

iTe^^^^r-'-  '•  ^^  »^'^'^c?isi:^rt  ^'Zu^,^  }=!^t^:ftl^:^ 
in  ;oi::;^°cio^X"'a'rb';^U'^^^^^^^^^^^^ 

subject  in  the  Po.ses.sion  of  tnd  enjoyL^t  ?f  ,hei?  rX  '  *"  P ''"'^^^^  '°  '"^-''^-^  'he 
encrouchment  of  the  GoverniuK  P^rt     S..con,nl  li  ^  t    *   Privileges  against  any 

Constitution  have  of  Cons^uence  a  power  to  l^I.nr  i?""".K'"^i'^'2*'  ^"''^  "^^t  f«"-"»  » 
alterable  by  the  Supreme  llStiveTl  se?uri^»7  i^^f'^^""f?  ="  Constitution 
encrouchment  of  the  Governing  part  on  am-  or^n^ii  i"-"  4"  ^"^  '"''J^'^'   against  the 

"Resolved  thirdly  that  it  apj^lrs  to  ?h  s  Town  M.Vr"  '*'?i"  ""1^  Privileges. 
or  Congress  be  immediately  chosen  to  form  amllfoM^ J*  expi.hent  that  a  Convention 
tants  of  the  Respective  Towns  in  thisS  ate  1,?,W  free  L'nH  i  *^°'""'"«'0".  by  the  Inhabi- 
m  Proportion  as  the  Representatives  of  thfs  State  wer.f^  Twentyone  years  an.l  upward, 
or  Congress  not  to  consist  of  a  greaternumher  ,h?n  '^!;"'''i!''' "''"'r"  =  "^^  Convention 
State  heretofore  might  consist  of.  excem  that  p/.h  T  *''«  ^°'}'^.°^  assembly  of  this 
to  send  one  Representative;  or  otherwise  I,  sh^f LI"*"  *  district  shall  have  Liberty 
State  in  General.  oinervMse  as  shall  appear  meet  to  the  Inhabitants  of  this 

thev' ad"oir;'fo/a  shSn\rm;^n']l%?brht°e?r°Prf,r'7'r5  "^"^-^  f?""-'  =»  Constitution. 
and  Remarks  of  the  Inhabitants  of  this  St»t'     ^'°^'^'^  Constitution  for  the  Inspection 
Kcsolved  51v.    Thai  th.  w„.,i.i.    u.    '^-    ,  ... 


■,f  M 


M 


iil 


■'■> 


(R   ^''"''P''"''  "     ""    -"ui>cu    uy    ine 

<»^^alH^:^J^^T^l.l:^''"  "^  <^<>"^*i""io<u,l  Conventions.  ro,S,  in  The  Consti- 

yf  the  British  government  as  those  charterTZi.-.t  V"",''    ^"V"'''^''    '"*°   «'"■■    ^fnature 

from   the  supervivlon  and   interference  nf'ntXT.'jL^^^^^^  t-  Protect  them 


'•e  irt  alone 


lid    In 


vork 


out  their  own  political  salv.iti, 


nl,,^(      (If 


red 


'n.     .\n.I  it  was  precisely  when 


128  THE  UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


and  where  they  were  least  hampered  by  foreign  control,  and  least  influenced  by  {orei|ni 
models,  that  they  developed  those  political  features  which  have  become  the  most  dis- 
tinctive characteristics  of  the  American  constitutional  system.  ([f'iWiom  C.  Morey,_  The 
First  Slate  Constitutions,  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
1893,  I'ol.  4,  p.  i3i) 

The  American  colonists  inherited  the  instincts  of  the  EnRlish  race.  But  under  new 
circumstances  they  were  called  upon  to  work  out  problems  which  were  peculiar  to  their  own 
political  life;  and  as  a  consequence  of  this  we  find  that  the  constitutional  system  which 
grew  up  on  this  continent  was  an  American  and  not  a  European  product.  Even  those 
institutions  which  seem  to  have  a  general  similarity  to  those  which  are  foreign  have  here 
acquired  specific  ch.iracteristics  which  distinjiuish  them  from  those  lielonRing  to  any 
foreign  connlrv.  (H'illiam  C.  Morex,  The  First  Slate  Cnnslitulions.  Annals  of  the  American 
Academy  of  roliiical  and  Social  Science,  1893,  Vol.  4,  pi.   /,  p.  ^03.) 

The  first  State  constitutions  were  in  their  main  features  the  direct  descendants  of  the 
colonial  j;overnments,  modified  to  the  extent  necessary  to  bring  them  into  harmony,  with 
the  republican  spirit  of  the  people.  Everv'  Slate,  cither  in  a  preamble  or  in  a  separate 
declaration  of  rights,  prefaced  its  constitution  by  a  statement  of  the  chartered  rights  upon 
which  it  had  always  insisted ;  and  many  of  them  also  declared  in  general  terms  the  demo- 
cratic principles  which  their  experience  and  reason  had  taught  them  and  which  had  been 
parflv  realized  in  thei'  previous  governments.  (Jl'iV/mm  C.  Morey.  The  First  Slate  Con- 
stiluiiims.  Annals  of  the  American  Academy  of  Political  and  Social  Science,  1S93,  Vol.  4, 
pt.   I,  p.  J19.) 

In  a  previous  paper  published  in  this  journal  it  was  claimed  that  the  real  continuity  in 
the  growth  of  .\merican  constitutional  law  cnuld  be  seen  only  by  tracing ;  first,  how  the 
charters  of  the  English  trading  companies  were  transformed  into  the  orKanic  laws  of  the 
early  colonies;  second,  how  the  organic  laws  of  the  Ci 'onies  were  translated  into  the  con- 
stitutions of  the  original  States;  and.  finally,  bow  the  original  State  cmKiiti.tions  con- 
tributed to  the  Constitution  of  the  Federal  Union.  (William  C.  Morey.  The  First  Stale 
C<mstilutinns.  Annals  of  the  American  Academy  of  Political  and  Social  Science,  1S93,  Vol. 
4,  p.  iOJ.) 

In  applying  the  historical  method  to  the  study  of  the  American  political  system  it  is 
not  enough  to  trace  the  origin  and  growth  of  the  various  branches  of  the  federal  govern- 
ment. The  origin  of  the  for-"'  of  the  federal  government  presents  no  great  historical 
difficulties  to  one  who  has  c  illy  studied  the  constitutional  history  of  the  early  States 
and  colonies.    He  finds  th.Ti  central  government  of  the  United   States,  in  its  general 

structure  and  its  various  bra  !,  is  scarcely  more  than  a  reproduction  on  a  higher  plane 

of  the  government  forms  exis  iig  in  the  previous  States,  and  more  remotely  in  the  early 
colonies.  (William  C.  Morey,  The  Sources  of  American  Federalism,  .-Imerican  Academy 
of  Political  and  Social  Sciences,  1893,  I'ol.  6,  p.  107) 

"  The  powers  of  the  states  depend  on  their  own  constitution ;  the  people  of  every  state 
had  the  rivbt  to  modify  and  restrain  them  according  to  their  own  views  of  policy  or 
principle;  and  they  remain  nnahered  and  unimpaired,  except  so  far  as  they  wore  granted 
to  the  government  of  the  United  States.  T'lese  deductions  have  been  positively  recognised 
by  the  tenth  amendment "  1  \Vh.  .?2S.  "  The  powers  retained  by  the  states,  proceed  not 
from  the  people  of  America,  but  from  the  people  of  the  several  states,  and  remain  after 
the  adoption  of  the  constitution  what  thev  were  be  f'^re.  except  so  far  as  they  may  be 
abridged  bv  that  instrument"  4  \Vh  lO.V'S  P.;  5  \Vh.  17.  54;  9  Wh.  2M.  9.  ,  "  In  our 
system  the  leqislature  nf  a  state  is  the  supreme  power:  in  all  eases  where  its  action  is  not 
restrained  hy  the  constitution  of  the  United  States"  12  Wh.  347.  ^"  Its  jurisdiction  is 
coextensive  with  its  territory,  eoextensivo  with  its  lettislative  power,"  .1  Wh.  .W ;  "and 
subject  to  this  grant  of  poA-er.  adheres  to  tbe  territory  as  a  portion  of  sovereignty  not  yet 
given  away."  The  resid'iary  powers  of  legislntion  are  still  in  the  state.  Ih.  389.  "The 
sovereitmlv  of  a  sti'e  evtenrls  to  ovrrv  t)i;n''  w''ieh  e^i's's  hv  its  own  authority,  or  is  intro- 
duced by  its  permission."  6  Wh  4?):  4  Pet  "^M.  <^'r  Justice  Baldwin.  A  General  View 
of  the  Oripn  and  Nature  of  the  Constitution  and  Government  of  the  United  States, 
1S37,  PP-  '4-'5) 


i  11 


-.4 1 


CHAPTER  VI 

ESTABLISHMENT    OF    STATE    CONSTITCTIONS 

PhillcSi.'orr'Tn%t-^'.^"°"'^  Continental  Congress  assembled  in 

^0^3X0?';""      •"u"'""''  ''•  '""^-  ^^'^^  ^'^^  ^-""  »hat  the  adven- 
uron    sons  of  l,l.erty  uere  thronRing  to  the  aid  of  Boston.     Here  on  the 

17th  of  June  of  that  year,  the  British  troops  were  worsted  at  Bunker  Hill  only 
h/.ir'.r'  ?  ""^'  ^'•^  ''''''''''■     "^-  '"^^y  -"^  hemmed  in  and  held  in 

mander  m  Ch.ef  ot  the  American  Armies.     These  events  made  a  great  im- 

reached  tiie.r  ears.     \\  hat  there  took  place  on  a  large  scale  was  taking  place  on 

author.t>    Us  othcals  were  driven  out  by  local  leaders,  and  legitimate  govern- 
ment m  the  former  .sense  of  the  term  ceased  to  exist 

The  colonies,   soon   to  Ik;   States,   were  anxious  as  to  the  course  thev 
should  take.  an.l  looke.l  to  the  Congress  for  advice,  as  tl.  oie      n^d    aT 

and  suggest.  It  ,t  could  not  command,  what  should  Ik;  done  by  each  in  the 
m  erest  of  the  whole.     The  far  sighted  foresaw  uulependence    In      1      im 
med  ate  problem  l.tore  them  was  to  replace  the  old  bv  new  authority    and 
o  check  anarchv.   which  often  precedes  as  well  as   follows  revolution    b 
local  government      Feeling  and  fearing  the  absence  of  authoritv.  Xew  n"  m' 
shire  asked  permission  of  the  Congress  "to  regulate  its  interna    po  L  'Zl 
on  November  3rd  that  body  recommende.l  the  provincial  conventLi      f  Xew 
Hampshire  "to  call  a  full  and  free  representation  of  the  peopl      a    ,  tlut 
the  representatnes.  If  they  think  it  necessary,  establish  such  a'orm  m  !  ov  rn 
nent.  as    ,n  their  judgment,  will  best  produce  the  happiness  o    th   'pe  p  e" 
and  most  effectuallv  secure  peace  and  good  order  in  the  province   dur  "gthe 
continuance  ot  the  present  dispute  l^tween  G[reat]    Brif.in   nnd  , 
on.es."       The  ne.xt  day  the  Congress  gave  similar  adlife    o  Luth  C  r  ,m  ' 
and^with  or  without  advice,  other  colonies  l>egan  to  take  actio  J  ' 

But  the  approach  of  independence  made  general  concerted  action  advis- 

•  '  urnals  of  the  Coniintn 


Impending 
Revolution 


r^esire  to 

I'rrvcnt 

Anarchy 


4  ii 

ii! 


11 

H 


=  Ibid.,  pp.  J20-7. 


OKoress,  Vol   iii,  p.  319. 
lag 


130 


THE   UNITED  STATES:    A   STIDY   IN    INTERNATIONAL  ORGANIZATION 


Recnmmen' 
liation  of 
Cungreu 


able,  and  therefore,  on  May  15,  1776.  the  ConRress  resolved  "that  it  be 
recommended  to  the  respective  assemblies  and  cor.ventions  of  the  United 
Colonies,  where  no  government  sufficient  to  the  exigencies  of  their  affairs 
have  been  hitherto  established,  to  adopt  such  government  as  shall,  in  the 
opinion  of  the  representatives  of  the  people,  best  conduce  to  the  happiness 
and  safety  of  their  constituents  in  particular,  and  America  in  general."  * 
Therefore  the  colonies  which  heretofore  had  not  formed  local  governments 
now  took  steps  to  do  so.  transforming  the  charter  of  the  colony  into  the  con- 
stitution of  the  State  in  the  light  of  their  ex))erience  and  according  to  the 
needs  which  that  experience  had  disclosed.  They  were  their  own  agents  and 
had  a  free  hand.  They  did  not  need  to  wrangle  with  the  Crc  vn  about  the 
terms,  for  the  Crown  was  excluded  from  their  deliberations,  .sor  did  they 
need  to  conform  to  the  views  of  the  Congress  as  to  the  provisions  of  their 
constitutions,  for  the  Congress,  while  it  could  recommend,  could  not  com- 
mand. The  ideas,  therefore,  which  had  slowly  taken  shape  in  the  colonies 
and  which  had  appro\ed  themsehes  in  practice,  or  which  were  thought  to 
be  advisable,  were  now  incorporated  in  the  constitutions  of  the  States.  For 
this  reason  the  constitutions  can  be  taken  as  the  solemn  and  formal  expres- 
sion of  their  views  on  government  during  the  decade  between  the  Declaration 
of  Independence  and  the  meeting  of  the  Annapolis  Convention  of  repre- 
sentatives of  five  States,  which  recommended  the  Congress  to  call  a  conven- 
tion of  all  the  States  to  frame  an  instrument  of  government  which  should 
be  a  constitution  for  the  States  in  union  and  a  constitution  for  each  of  the 
States  considered  separ-xtely. 

The  leaders  of  opinion  in  each  of  the  colonies  preserved  those  provisions 
of  the  charters,  or,  in  the  absence  of  a  charter,  the  royal  instructions,  which 
met  with  the  approval  of  their  constituents,  together  with  the  views  generally 
obtaining,  and  transferred  and  incorporated  them  in  the  constitutions  of  each 
of  the  States.  The  leaders  of  opinion,  who  had  either  framed  or  had  had  a 
hand  either  in  the  framing  or  in  the  administration  of  these  instruments  of 
government,  or  who  had  lived  under  these  constitutions  and  were  therefore 
familiar  with  their  provisions,  were  chosen  to  represent  their  States  in  the 
convention  of  the  Stales  called  to  meet  in  Philadelphia  on  the  second  Monday 
of  May,  1787,  to  revise  the  .\rtic!es  of  Confederation.  Because  they  drafted 
a  constitution  instead  of  contenting  themselves  with  a  revision  of  the  Articles, 
their  assembly  is  affectii)nately  called  the  Constitutional  Convention,  although 
it  would  with  ei|ual  proi)riety  be  called,  as  it  often  is,  the  Federal  Convention, 
as,  in  view  of  tlie  facts,  it  should  lie  termed  the  international  conference  of 
the  American  States. 

As  in  the  State  conventions  so  in  the  international  conference,  the  leaders 
^Juutnah  if  .'fir  Crniiiu-r.iu'i  Cun:;rcss,  Vol  iv,  p.  342,  Session  of  May  10. 


ESTABLISHMENT  OF   STATE   CONSTITCTIONS 


131 


Influence 
of  Charters 


themseir        ITu  ""''  ''^ '^'  "^'"''"^^  °^  Confederation  as  had  justified  A.».c.n 
nST  .k"  •     '  "'■"""""^  "^  '"^^  ^''''  constitutions  as  seemed  ap-    .«&nd 

te  n  s  n The  r"'T;"f  "'"rV"'/'""^'  *^"-™'"<^"».  and  incorporated  thdr  '"  "" 

consHer  m  th^s  place  and  .n  th.s  connection  the  fundamental  conceptions  of 
the  colonml  charters  and  of  the  State  constitutions,  in  order  that  we  may  under- 

irn/lTe'rilhSSir''  "^^"•^'  -■--  ^^  «^^  ^e.e.atesLetin. 
For  the  view  that  the  States  had  a  free  hand,  that  thev  naturally  and  inevit- 
mol  fi  ;Ti!  I'  ''"'  "'  «-'""--t  they  wanted,  that  in  so  doin,  th  y 
mod.hed  the  charter  m  the  form  and  to  the  extent  which  thev  thought  nect- 
ary. usmK  .t.  however,  as  the  basis  of  discussion,  as  thev  ha.lgrown  up  ",n  er 
•t  and  .t  was.  as  <t  were,  bone  of  their  bone  and  flesh  of  their  flesh  we  need 
onlv  turn  to  Connecticut  and  Rhode  Islan.I.  without  indulging  in  speadat  on 

that  the>  dd  not  form  const.tut.onv  in  response  to  the  recommen.lati.n  of 
Congress  o,  ^ray  15.  1776.  but  contented  themselves  with  the  change  of  a  few 
.ords  or  phrases  .nthe.r  respective  charters  made  necessary  bv  the  expulsion 
ti     in  Sirr    '^TTT""  °'  ^"^■^••^'■^^^-  «"  ''^e  part  of  the  State,  tm- 
unti   184.      h      r°'     1    '^^"'-'^'■■^"^  f°™'^'l  their  first  constitution,  and 
untd  1842.  when  the  people  of  Rhode  Island  formed  their  first.     The  example 
of  Massachusetts  will  show  that,  where  the  charter  was  not  retained   a  Ta 
the  case  m  the  other  colonies  possessed  of  one  upon  the  outl.reak  of    he 
Reyolu  .on.  the  leaders  of  opinion  in  the  .lififerent  States  nevertheless  took  i 
as  the  l,as,s.  om.ttmg  the  provisions  to  which  thev  obiected  or  w  kh  were 
mapphcable^  msertmg  others  that  met  their  desires  or  the  needs  o       eir    on- 

lith  r  ,  T  '"'  '■'"  ^-^  '°"P'™^  '''  '=^"«"-^^'^  °''  ^''^  charter  deal  ng 
N.th  the  leg.slat,v-e  powers  of  the  province  with  the  corresponding  section  o1 
the  commonwealth  of  Massachusetts,  adopted  by  the  people  thereot"  i  1780 
Thjs  constuufon  was  sa.d  at  the  time  to  l.e  the  best  of  the  State  constitutions 
and  w,th  amendments  u  ,s  still  in  force  as  the  oldest  of  all  written  con  tim: 
Jons  Th,s  ,!lustrat,on  was  used  for  this  purpose  by  one  who  has  gi ven  m  ch 
thought  to  the  sul.ect .  and  who  chose  it.  as  he  said,  almost  at  random  Bv 
the  smiple  device  ot  placmg  m  parallel  columns  the  provisions  of  the  dnrter 
an<l  of  the  constitution  dealing  with  legislative  powers,  it  is  evident  to  the 

\y.  C.  M.rey.  The  Genesi.  of  a  Wri.t  n  Con4  U  n\  ^  "l/''  l^Y^Y''"''''"'-  '''  ="^'' 
Al.r.1,,  im,  pp.  S20-5-:  also  J.  H.  Rohnn.son.  Tl  •  Or  eina  ami  n  ;'  ■'',"•''•"•"  •'<".■'.•".>■. 
Lonstitmion.  in  the  same  periodical,  OctoWr    im   np    %"u\  *"''   '••^'■>""-«  '^f  the 

Of  interest  in  this  connection  is  Charles   Deane    Tl^e   P„™-    •      t       •        , 
l>y  the  Crown  of  En^biid,  .^V.^v.-./f.^.^    ./ -A  -  .?"  '   .:.  ^,,  '^'?'.'  in    fssuinfr  Letters-Patent 
1869.  ■        '       '   •"^•'■"'""■■'•"•>-  ""fO'-'.-a/  6,.ci,-0',  December, 


»3 


If 


iff 


ti 


132 


THE   UNITED  STATES:   A   STVDY   IN    INTERNATIONAL  ORGANIZATION 


eye  as  well  as  to  the  understanding  that  the  constitution  was  the  outgrowth  of 
the  charter. 


Thr  Thret 
Govrrnmtnt 


Constitution 
And  further,  full  poiver  and  author- 
ity are  hcreljy  given  and  granted  to  the 
said  General  Court,  from  time  to  time 
to  make,  ordain,  and  establish  all  man- 
ner of  wholesome  and  reasonable  or- 
ders, laws,  statutes  and  ordinances,  di- 
rections and  instructions,  either  tn'</i 
f'cnalties  or  without;  so  as  the  same  be 
not  rcfuynant  or  contrary  to  this  consti- 
tution, as  they  shall  judge  to  be  for  the 
good  and  ivelfare  of  this  common- 
wealth, and  for  the  goiermnent  and  or- 
dering thereof,  and  of  the  subjects  of 
tlie  same,  and  for  the  necessary  sup- 
fort  and  defence  cf  the  government 
thereof. 


Charter 
And  we  doe  further  for  vs  our  heires 
and  succesurs  give  and  grant  to  the  said 
Governor  and  tiie  Great  and  Generall 
Court  or  Assembly  of  our  said  province 
or  territory  for  tlic  time  being  full 
poiiTr  and  authority  from  time  to  time 
to  make  ordaine  and  establish  all  man- 
ner of  wholsume  and  reasonable  or- 
ders laws  statutes  and  ordinances  di- 
rections and  instructions  cither  with 
penalties  or  without  tsoe  the  same  be 
not  repugnant  or  contrary  to  the  iawes 
of  this  our  rcahiie  of  luigland )  as  they 
shall  judge  to  he  for  the  welfare  of  our 
said  province  or  territory  and  for  the 
gouernment  and  ordering  thereof  and 
of  the  people  inhabiting  or  who  shall  in- 
habit the  same  and  for  the  necessary 
support  and  defence  of  the  government 
thereof. 

The  original  charter  was,  as  we  have  seen,  that  of  a  trading  company, 
granted  to  certain  persons,  freemen  of  the  company,  with  power  to  add  to 
their  mcinliers.  with  a  general  assembly  or  court,  composed  of  the  freemen 
originally  or  siil)se(|uently  added,  meeting  some  four  times  a  year,  with  a 
smaller  IkkIv.  under  the  presidency  of  the  governor  or  treasurer,  to  administer 
the  affairs  of  the  company  in  accordance  with  the  terms  of  the  charter  and 
with  the  rules  and  regulations  laid  down  by  the  members  of  the  company  met 
in  general  court  or  assembly.  In  the  language  of  corporate  law,  the  memljcrs 
of  the  company  would  today  be  called  stockholders,  and  the  court  or  assembly 
would  Ik;  known  as  the  meetings  of  the  stockholders:  the  committee  elected 
out  of  their  mcml)ership  would  Ixr  termed  the  Ixiard  of  directors,  and  the  pre- 
siding ofticer.  chairman  or  president.  In  colonial  experience,  the  members  of 
the  company  were  the  freemen  of  the  colony,  the  smaller  l)ody  the  assembly, 
composed  of  deputies  or  representatives  of  the  freemen,  whether  called  house 
of  burgesses,  assembly,  or  general  court,  with  a  more  exclusive  Iwdy,  the  sec- 
ond chan  Ix-r  or  upper  house,  in  the  nature  of  a  council,  composed  of  a  re- 
stricted number  of  memk-rs  and  presided  over  by  the  governor.  In  the 
charter  all  powers,  whether  executive,  legislative  or  judicial,  are  vested  in 
the  .\ssembly.  in  the  smaller  Ixtdy  and  the  governor:  in  the  colony  there  is 
indeed  a  separation  of  functions,  suggesting  ami  ultimately  resulting  in  the 
separation  of  powers  into  the  legislative,  executive  and  judiciary;  for,  al- 
though courts  were  established,  the  assc;r,!.>!y  at  times,  or  the  governor  in  cnun- 


KSTABLISHMENT  OF   STATE   CONSTITLTIONS 


133 


cil.  acted  as  courts  of  appeal,  and  the  upper  house,  partaker  in  legislative  func- 
tions, and.  in  association  with  the  jfovcrnor.  may  be  considered  as  participat- 
niR  in  the  executive  power  and  the  Rovernor  may  Ijc  said  to  share  in  all  three. 
The  need,  however,  of  an  express  separation  and  a  limitation  of  powers 
had  made  itself  felt,  and  althouRh  it  is  not  complete  in  all  respects,  if  indeed 
It  can  ever  be  so.  the  principle  of  separation  and  of  limitation  is  incorporated 
in  the  State  constitutions,  In  the  constitution  of  Virginia  of  July  5  1776 
drafted  More  the  introduction  hut  adopted  the  day  after  the  Declaration  of 
Independence,  it  is  stated  immediately  after  the  preamble  that: 

The  legislative,  executive  and  judiciary  departments  shall  be  separate  and 
distinct,  so  that  neither  exercise  the  powers  properly  belonging  to  the  other.' 

And  the  reason  for  this  separation  has  never  been  more  clearly  stated  it  is 
believed,  than  in  the  following  classic  paragraph  from  the  thirtieth  article  of 
the  Declaration  of  Rights  prefixed  to  the  first  and  present  -onstitution  of 
the  commonwealth  of  Massachusetts : 

In  the  government  of  this  commonwealth,  the  legislative  department  .hall 
never  exercise  the  executive  and  judicial  powers,  or  either  of  them       The 

IT'ZZ"  Th  '''':^'rV^  '^'  ''•^'^'•■'"■^••^  •■'"'•  J"'"^--'-''  P"«"«.  "r' either 
^Jers  or  Itr^^lf'.^'  ^»'-'"  ""•'■^«^:'«-rcise  the  legislative  and  executive 
ii^t  of  men'  '  '"'''  "  ■"'''  ''^  "  Po^ernnient  of  laws,  and 

Therefore,  according  to  these  principles,  which  pervaded  the  States  of 
America,  there  was  to  l.e.  and  in  fact  there  was  a  government  of  each  of 
the  States  consisting  of  three  branches,  each  more  or  less  separate  and  dis- 
tinct. The  constitution  was  t<.  lie  made  l.v  the  representatives  of  the  people 
met  in  convention  for  that  purpose,  or  to  be  drafted  bv  the  legislature  on  be- 
half of  the  people,  inasmuch  as  the  sovereigntv  which  ha.l  formerlv  vested  in 
the  Crown,  the  lords  spiritual  and  temporal  of  Great  Britain,  was  by  the 
Declaration  of  Independence,  vested  in  the  people  of  each  of  the  States  '  Hut 
whether  it  was  exercised  in  convention  by  representatives  speciallv  chosen 
to  frame  a  constitution  or  by  members  of  the  legislature,  the  act  of  one  or 
the  other  was  onlv  valid  if  within  the  .scope  of  the  agencv :  and  convention 
and  legislature  were  alike  responsible  to  the  people  as  the  ultimate  source  of 
authority. 

The  constitution  was  thus  not  a  grant  from  above  to  the  people  below 
but  a  grant  from  the  people  to  its  agents,  who  apparently  regarded  the  consti- 
tution as  in  the  nature  of  a  cmp.ict.  in  which  the  people  as  a  whole  con- 
tracted with  each  citizen,  and  each  citizen  with  the  whole  people  to  observe 
Its  terms;  and  the  govcrni,  rit  ..f  the  Widy  politic  was  regarded  as  created  not 

~    :  CoHttilulions  of  the  Several  Independent  Stat, 


SoverciRnty 
X'estrcl  in 
the  IV.,|.|e 


li; 


If 


*    5| 


=  Ibid.,  p.  14. 


America.  1781,  p.  t40. 


134 


THE    INITED  states:   a   STIDY   IK    INTERNATIONAL  ORGANIZATION 


A  SocitI 

and  a  rolitiral 

Compact 


merely  by  or  with  the  consent  of  the  citizens  Init  l)y  their  direct  act  or  by 
their  authorized  agent<<  for  this  purpose.  The  organization  is  a  sfKial  cum- 
pact  as  far  as  the  association  of  the  citizens  forming  it  is  concerne  I,  an<l  a 
pf^itical  compact  as  far  as  the  government  of  the  b«Klv  politic  is  concerned. 
Because  of  this  action  on  their  part  they  are  liouml  by  the  compact,  although 
on  this  theory  it  is  difficult  to  sec  how  their  descendants  are  to  Ik  bound.  The 
act  which  they  committed,  the  association  which  they  formed  an<l  the  compact 
which  they  l)elieved  they  created  are  |)erhaps  most  clearly  stated  in  the  pre- 
amble to  "  a  constitution  or  frame  of  government,  agreed  upon  by  the  dele- 
gates of  the  people  of  the  State  of  Massachusetts  Bay,  in  convention,  Ixgun 
and  held  at  Cambridge,  on  the  fifth  of  Septenil)cr,  1779,  and  continued  by  ad- 
journments, to  the  .second  of  March.  1780,"  which  preamble,  still  prefixed  to 
the  constitution  of  that  commonwealth,  reads  as  follows; 

The  end  of  the  institution,  mainten.ince  and  administration  of  government, 
is  to  secure  the  e.xistence  of  the  iKKly-jwlitic,  to  protect  it,  and  to  furnish  the 
individuals  who  conijiose  it.  with  the  power  of  enjoying,  in  safety  and  tran- 
quillity, their  natural  right,  and  the  blessings  of  lift:  .\nd  whenever  these 
great  objects  are  not  obtained,  the  j>copIe  have  a  right  to  alter  the  govern- 
ment, and  to  take  measures  necessary  for  their  safety,  prosperity  and  happi- 
ness. 

The  Ixxly-politic  is  formed  by  a  voluntary  association  of  individuals;  it 
is  a  social  compact,  by  which  the  wliole  peo[)le  covenants  with  each  citizen, 
and  each  citizen  wuh  the  whole  people,  that  all  shall  be  governed  by  certain 
laws  for  the  common  good.  It  is  the  duty  of  the  jH-ople.  therefore,  in  fram- 
ing a  constitution  of  government,  to  provide  for  an  ei|uitable  mode  of  making 
laws,  as  well  as  for  an  iniparti.il  interpretation,  and  a  faithful  execution  of 
them ;  that  every  man  niay.  at  all  times,  find  his  security  in  them. 

\Vc,  therefore,  the  people  of  Massachusetts,  acknowledging,  with  grate- 
ful hearts,  the  goodness  of  the  Great  Legislator  of  the  Lniverse,  in  affording 
us.  in  the  course  of  his  providence,  an  opinirtunity.  deliberately,  and  {)eace- 
ably,  without  fraud,  violence,  or  surprize,  of  entering  into  an  original,  ex- 
plicit, .and  solemn  compact  with  each  other:  and  of  forming  a  new  constitu- 
tion of  civil  government,  for  ourselves  and  posterity;  and  devoutly  implor- 
ing his  direction  in  so  interesting  a  design.  DO  agree  ujwn,  ordain,  and  es- 
tat)lish.  the  following  Declaration  of  Kif/hts,  and  Prune  of  Government,  as 

the  CiiNSTITfTION  OF  THE  CoM  MON  WEM.TIt   OF   MASSACHUSETTS.' 

The  provisions  of  this  social  compact  were  not  matters  of  theory  with 
the  good  people  of  those  davs:  they  were  principles  of  the  constitution  to  be 
obser\ed,  a  fact  thus  stated  by  the  eighteenth  article  of  the  Declaration  of 
Rights  of  Massachusetts: 

A  fre(|uent  recurrence  'o  the  fundamental  principles  of  the  constitution, 
and  a  constant  adherence  to  those  of  piety,  justice,  moderation,  temperance, 
industry,  and  frugality,  are  absolutely  necessary,  to  preserve  the  advantages 
of  liberty,  and  to  maintain  a  free  government.     The  people  ought,  conse- 

>  7''C  C'^tistitutions  of  thf  ^nval  !'<dt'!>ft!di-Ht  Slates.  178!.  nn.  7-8. 


ESTABLISH  ML  NT   uF   MATE   CUNSriTL  TIONS  I35 

their  lawgivers  and  maRistratTin  o;,.;,,n /^  .""'  u  "'*  "  '"'  '"'^•l"'^*  "f 
the  formation  and  eSion  of  all  hv?  n  ™ns  ant  observance  of  then,,  in 
of  .he  conmionwealth  '  "'  nccosary  for  the  koo<I  adnunistra.ion 

The  «,mc  ideas  are  found  expressed  in  the  Dill  „f  Rights  a.l.mte.i  at  .he 
conven.,o„  he  Id  a.  Uiliinmsl.nr,.  NirRinia.  draf.ed  1.- ^ieor'.  so,T,nd 

adopted  June  12  1776.  within  fue  davs  after  the  ni..,i..n  n.adl  1.  R  hard 
Henry  Ue.  on  l.h.df  of  Xjr«i„ia,  for  .he  Declaration  of  ul^en  Icte 
and  severa  week,  1.  ..re  .he  adop.i.-n  of  the  l^daration.  draf.ed  irhoma: 
Jefferson,  likewise  of  \irKinia.     Thus:  •")   i  nomas 

havf^^Clln'inh;;::::.^;^;^  wh^rS^S'^i--"'!  '"''<-P-<'ent.  and 
they  cannot,  bv  anv  compact  denriv;  r.r  Hi  T  .i  •"  '"•°  ■■•  ''•'"'"  "^  ^"«''tv. 
enjoynu-n,  of  life  .^nd  Zrtv.  w^.rfhe  nt  ns  n 'T-  ^"''''"' '  r"'"'^''  "'^ 
proper..^  and  pursuing  and  .^.ainlj^tpp!^":  ^,:;:i^;r«  '""^  '— "'*^ 

I^eopl^:  5,at  m^^^  i;":^;Xrlrir-.:::''  consc.,.,en.Iy- derived  from,  the 
amenable  to  tlum.  '"''"^'•'  ^"''  ^"^^nts.  and  at  all  times 

the  various  m.Klcs  .ind  f  ,^  ,7  1'  n  '  il  ?''","  "'  "'"""""'«>•:  "f  all 
pro,|„cinK  the  Rreatestdcur-c  o  h^  ,in  '  '  '"f"  '"■'*  ."'''''^  '^  '••'I'--''''^'  "^ 
.sccure<I  against  the  daimr  of  "!    !  .'        "  ""''  '•''^•■'>'  ■"""'  '^  "i"^'  t-ffmuallv 

the  community  hath  an  induhi;a;:^,'Snal  ^ nnd  i^S"^ ,'  "T"''  "^ 
form,  alter,  or  abolish  it   in  sii,-h  m.,,  ■'  n  .   "  '■' '< 'T-'hlc  right  to  rc- 

to  the  public  weaL  "''"""''  "'  ^'•'''"  '«"  J^'JK''*'  "los.  conducive 

emriftmuits  I?prMl^ges•f^o,u^\:;^"'"•  ■''^^"  '^""■"^••'  '"  "'^'"-■^•'^  «r  separate 
services:  which  no,  ten;,^^^:^^^^^^  h'-tu,  consideration  of  f.ublic 
legislator,  or  judge  to  be  Lreditan-  '  °"^^'  ""'  °'"'^^"  °^  "lagistrate. 

In  pursuance  of  this  right  to  choose  their  form  of  government  and  to 

chan^::  rn^'h^v'Tir^  t  r ";;::?  -^  ^•^^  .^^"^•^-  -••  -  »- 

for  their  amendment.  "  Conr'n.:,:  ..e  Jo7:2:Z;T  ^""  '"'"'^ 

rrrr:  :zz::  ^-^-^  -  °-  ---  ":i  ti;L::'^;:co: 

iclered  at  a  suhse.,uent  session  or  by  a  larger  majoritv  in  the  Ic-isl-ttrre- 

c.^h  of  .he  CI  i.ens  o,  .he  State  on  the  other,  was  a  fundamental  law      I      a    ' ' "■ 

not  an  act  of  the  legislature,  to  In.-  withdrawn  or  modified  bv  the      n  ,1 
^^tv  ot  a  deliberative  assembly,  as  would  be  the  casr  orailtu;:;; 

'  ihiit.  pp.  12-i.r 

=  Thur,.o,  (  narwrs  and  Con,ti,u,ions,  Vol.  7,  p.  J8U;  Poore.  pp.  19<W-9. 


1 


tneiit.ll 
Law 


'f  H 


n 


fv^ 


136 


THE   LNITEtJ  STATES:    A   STIDY    IN    INTEBNATIOV.VL  OWiAXIZATION 


Revenue 
UilU 


Cdvprti'T's 


F.nch  of  the  thirtwn  States  had  the  threefold  separation  of  |K)wer».  and 
each  had  a  legislative  branch,  which,  with  the  cxcejxion  of  Pennsylvania, 
consisted  of  two  houses.  Kach  had  a  single  executive,  calleil  president  or 
governor,  and  each  had  a  judiciary,  separate  and  distinct  from  In.th  i)t  thoe 
powers,  hut  on  apfK-al  the  ju.'icial  power  was  in  some  cases  exercised  ui  on- 
junction  with  one  or  lx)th.  In  colonial  times  the  legislative  i)c)wer  h.nl  U-en 
exercised  in  an  asseniMy  com|K)sed  of  two  hranclies,  and  this  niciiiod  was 
retained,  hut  each  branch,  however,  was  henceforth  elected  by  the  pti.plc,  rc- 
jcctuig  the  principle  of  appointment  of  the  upper  branch.  In  Pennsylvania, 
title  apparently  to  the  influence  of  Menjamin  Franklin,  there  was  but  <me  chani- 
Ur,  an<l  Veriiinnf.  Iieinp  without  experience,  as  it  had  not  l)ee!»  a  colony  under 
the  Crown  nor  a  .^tate  under  the  Articles  of  Confederation,  adopted  the  single 
hou>c  from  Pennsylvania,  and  indeed  its  entire  constitution.  Hach  l)ody 
could  i)ropose  laws,  but  the  approval  of  lioth  was  necessary  to  the  statute,  as 
v.as  the  ai)proval  of  the  governor. 

The  colonists,  like  the  people  of  England,  had  learned  that  the  power  that 
held  the  purse  would  control  the  sword,  and  as  the  lower  house  was  elected  by 
the  j)eople  and  the  upjnrr  house  in  most  cases  appointed  by  the  governor  or 
Crown,  acting  for  the  Crown,  the  colonists  insisted  that  revenue  bills  should 
not  only  originate  in  the  lower  house,  but  that  they  could  not  Ik;  controlled  by 
the  upper  house,  consisting  of  the  governor  and  appointed  lucmliers.  Hav- 
ing in  mind  this  experience,  the  constitutions  of  the  States  provided  that 
revenue  bills  should  originate  in  the  lower  not  in  the  upper  house,  although 
some  allowed  them  to  lie  amended  in  the  up|H.r  house  while  others  withheld 
this  power  from  the  second  chanil)er. 

The  law ,  whether  it  lie  an  ordinary  statute  or  a  revenue  bill,  in  most  cases 
required  the  approval  of  the  governor,  which  is  either  a  deviatitm  from  the 
principle  of  separation  or  is  the  coo|K'ration  recognized  as  se|)arate  and  dis- 
tinct ill  thi-ir  n.iture.  It  was.  however,  apjireciated  that  the  governor  might 
improperly  or  mistakenlv  withhi>M  his  approval,  and  that  it  wimlil  interierc 
with  the  legislature  and  Ik-  a  detriment  to  this  system  of  government  if  he 
were  thus  allowed  to  blnck  the  course  of  legi>lation.  Therefore,  a  method 
was  devised  to  overcome  the  deadlock  between  these  two  branches  of  govern- 
ment, the  t)rincii)le  of  which  appears  to  k-  l)est  stated  in  Article  3  of  "  the 
Constitution  of  the  St;ite  of  \ew  York,  established  by  the  Convention  author- 
ized and  empowered  lor  that  purpose  April  JO.  \"7  "  —  the  model  of  pro- 
visions in  other  Slates  and  the  sdune  of  proposals  made  in  the  v'oiistitulional 
Convention  and  the  direct  source  of  the  principle  ultimately  adopted.     Thus: 

And  whereas,  law  incDiHisteiit  with  tlie  ypirit  of  tlii^  constitution,  or  with 
the  public  l'oimI.  ri:iy  he  li:i~tily  .-iml  lUKicK isedly  passed;  be  it  ordained  that 
the  !:i>vern"r  fnr  the  lime  bei'i!,'.  liie  ciuinLeUor.  ai!',!  tb.e  jiulj^'es  isf  jl-.e  -iipreme 


E!1TABU»MMICNT   ur   STATt  CUN»TITUTIONS 


137 


court,  or  any  two  of  thetn.  together  with  the  ((ovemor,  shall  be.  and  hcretjy 
arc,  ronsitituted  a  council  to  revise  all  bills  altout  to  k-  passed  into  laws  by  the 
Kgislaturc,  and  for  that  purj^sc  shiill  assenible  tlnniselves,  from  time  to  time, 
when  ihe  legislature  shall  be  convened ;  for  which.  iuverllu-leH>,  ihcv  shall  not 
r«H-eive  any  salary  or  consideration,  under  any  pretence  whatever.  '  .And  that 
all  hills,  which  have  passc<l  the  senate  and  assi-nihlv.  shall,  before  they  hecome 
laws,  Ih-  presented  to  the  said  council  for  their  revi^.d  and  consideration  ;  and 
if  u[>on  such  revision  and  consideration,  it  -liquid  .ippe.Tr  iniproju-r  to  the  >-aid 
council,  or  a  majority  of  them,  that  the  said  bill  should  U'come  a  law  of  this 
state,  that  they  return  the  same,  together  with  iheir  objections  thereto  in 
writmp,  to  the  senate  or  hun^i-  of  asseml>lv,  in  which  so  ever  the  same  shall 
have  origm.ited.  who  sh.ill  enter  the  objections  sent  down  bv  the  council,  at 
large,  m  their  minutes.  an<l  pr-x vid  to  reconsider  the  said  hill.  I'.ut  if  after 
such  reconsideration,  two-thirds  of  the  said  senate  or  bou>e  of  assembly  shall, 
notwithstanding  the  said  objections,  agree  to  pass  the  same,  it  shall,  tointher 
with  the  objections,  Ik-  sent  to  the  other  branch  of  the  legislature,  where  it 
shall  also  Ik  reconsidered,  and  if  approved  by  two-thinis  of  the  mcml)ers  )res- 
cnt,  shall  be  a  law.  ' 

And  in  order  to  prevent  anv  unnecessary  delays,  be  it  further  ordained 
that  If  any  bill  shall  not  be  returned  bv  the  council  within  ten  d.ivs  after  it 
shall  have  been  presented,  the  same  shall  be  a  la,. .  unless  tlir  legislaiiKc  shall 
by  their  adjournment,  render  a  return  of  the  said  \,-\\  within  ten  davs  im- 
pr.icficable  ;  in  which  case  the  bill  shall  be  retiirn.^d  on  the  first  day  of  the 
meeting  of  the  legislature,  after  the  expiration  of  the  said  ten  days'' 

The  grant  of  jxiwcr  to  the  Icgislauire  was  contained  in  the  constitution 
and  was  presumed  to  In;  complete,  unless  restricte<l.  li  it  was  dccnieil  neces- 
sary or  exi)edient  in  the  opinion  ot  the  iranicrs  of  the  constitution  to  uith- 
hol.l  power  from  the  legislature,  this  was  likewise  done  in  the  coiistitutioii. 
and  the  declarations  ui  rights  pretixe.l  t..  the  State  constitutions  .re  to  Ik; 
considered  as  limitations  upon  the  legislative  UnU .  1  here  I  ore  tlu-  jniuers 
to  Ik-  enjoye.l  bv  the  legislative  branch  of  the  States  did  not  need  to  ik-  enum- 
erated in  specific  terms  as  in  the  case  of  the  .\rticles  of  Confederation,  or  in 
specific  and  general  terms  as  in  the  case  of  the  Constitution  of  the  I  iiied 
States,  inasmuch  as  all  (lowers  of  the  State  vested  in  the  people  of  the  '^tate, 
and  only  such  powers,  could  lie  exercised  by  the  union  of  the  States  as  ^iiould 
be  granted  expressly  or  by  necessary  implication.  Nevertheless,  the  neople 
of  the  States  were  so  accustomed  to  a  declaration  of  rights  that  they  ohjected 
to  its  absence  from  the  i'ederal  Constitution,  and  altho.  . '  no  power  cuiKI  he 
exercised  by  the  govcniment  thereunder  unless  expressly  .jr  im()liedly  granted, 
they  insisted  upon  amendments  to  the  Constitution,  of  which  twelve  were 
prop<)sed  by  the  first  congress  of  the  more  perfect  I'nion  and  ten  adopted  bv 
the  States.  I'hese  amendments,  presumed  to  express  the  views  oi  the 
fratiiers  of  the  Constitution,  were  so  contemporaneous  with  that  instrument 
as  to  be  in  fact,  although  not  in  form,  a  declaration  of  rights  appended  in- 
stead of  being  prefixed  to  it. 

*  The  Conslilutions  of  Ihr  Snrral  ItidrpendcHl  Slates.  1781.  vv.  6.^-4. 


r.ciit<latiTe 


'4 


I  [ 


138 


THE   UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 


Executire 

Powers 


Judicial 
Powtrs 


The  executive  power  was  vested  in  the  governor  or  president,  as  he  is 
called  in  some  of  the  constitutions,  and  he  exercised,  either  alone  or  in  con- 
junction with  a  smaller  body,  the  executive  power  of  the  State.  He  was 
the  Captain-General  or  the  Commander-in-Chief  of  the  land  and  naval  forces 
of  the  State,  and  his  duty  was  to  obey  its  laws,  to  secure  their  universal  ob- 
servance, and  to  exercise  in  his  discretion  the  rights  vested  in  him  as  executive. 
He  was  elected,  in  some  cases  directly  by  the  people,  in  others  bv  the  legis- 
latnre.  He  appointed  officers,  in  .some  cases  by  the  advice  and  consent  of 
the  legislature  or  of  one  of  the  branches  thereof,  although  in  some  States  the 
officials,  especially  the  judges,  were  elected  by  the  legislature.  The  practice 
varied,  and  l)ecause  of  this  variation,  difficulty  was  experienced  in  hitting  upon 
an  acceptable  method  of  choosing  the  judges  in  the  Federal  Convention;  and 
because  of  the  election  of  the  executive,  either  by  the  people  of  the  State  or 
by  the  le},'islatures  of  the  different  States,  there  were  differences  of  opinion  in 
the  Federal  Convention  difficult  to  reconcile  because  of  diverse  practice  and  a 
lack  of  experience  in  the  case  of  the  election  of  a  president  of  the  United 
Slates  instead  of  an  executive  within  each  of  the  States.  In  the  ci^e  of  the 
colonies  the  governor  was  appointed  by  the  p*-  nrietor,  as  in  the  case  of  the 
proprietary  provinces  of  Maryland  and  of  i  nsylvania,  or  appointed  by 
the  Crown,  as  in  the  colonies  generally,  or  elected  by  the  people,  as  in  the 
case  of  Rhode  Island  and  Connecticut,  in  the  same  manner  a  a  Mayor  in  a 
Corporation  in  England.  Because  of  lack  of  experience  in  the  colonies  as 
well  as  in  the  States,  the  method  of  selecting  the  president,  devised  by  the 
framers  of  the  Constitution,  broke  down  within  a  few  years  after  the  institu- 
tior  of  government  under  the  Constitution,  and  has  l)een  twice  amended. 

In  the  matter  of  the  judiciary  it  is  sufficient  to  sav  in  this  connection 
that  courts  were  organized  and  existed  in  each  of  the  colonies,  that  thev  were 
appointed  by  the  proprietors  in  Maryland  and  in  Pennsylvania,  that  they 
were  appointed  bv  the  Crown  generally  to  serve  during  the  pleasure  of  the 
Crown,  although  there  was  a  determined  attempt  on  the  part  of  the  colonies 
to  have  them  hold  office  during  good  I)ehavior.  as  in  the  case  of  the  English 
judges,  appointed  after  and  in  pursuance  of  the  Bill  of  Rights  of  1689,  or 
they  were  appointed  or  elected  by  the  colonial  authorities,  as  in  the  case  of 
Connecticut  and  Rhode  Island.  The  final  court  of  appeal  was  during  the 
colonial  period  the  King  in  Council,  just  as  the  laws  of  the  colonies,  with 
the  exception  of  Connecticut  and  Rhode  Island,  were  subject  to  veto  under 
prcscrilied  conditions,  by  the  King  in  Council. 

I'nder  the  constitutions  of  the  States  there  was,  as  has  been  stated  a  judici- 
ary, whose  judges  were  ordinarilv  elected  by  the  legislature,  or,  as  in  the  case 
of  Massachusetts,  appointed  by  the  governor  with  the  advice  and  consent 


ESTABLISHMENT  OF  STATE   CONSTITLTIOXS 


139 


i 


of  the  Senate,  and.  because  of  colonial  experience,  they  held  office  during 
good  behavior. 

There  were  inferior  courts,  such  as  those  presided  over  bv  justices  of 
the  peace:  there  were  county  courts,  there  uere  superior  courts,  there  were 
courts  of  appeal,  and  there  were  courts  of  chancery,  in  most  although  not  in 
all.  and  appeal  lay  from  the  lower  to  the  hiRher  courts.     The  Senate  of  \ew 
\ork  was  the  ultimate  court  of  appeal,  following  the  English  practice  in 
which  the  House  of  Lords  decides  in  final  resort;  the  governor  and  three 
meml>ers  of  each  house  forming  the  court  of  appeals  in  Delaware  and  in- 
vested with  the  jurisdiction  of  the  King  in  Council.     Whether  the  officer  was 
a  legislator,  executive  or  judge,  he  was  responsible  to  some  higher  authority 
according  to  the  principles  of  the  constitutions,  subject  to  impeachment  by 
the  legislature  and.  after  trial  either  bv  the  lower  house  or  separate  tribunal 
removable  from  office.     The  governments  under  the  constitutions  were  to 
be  governments  of  law,  not  of  men.  in  a  larger  and  a  more  perfect  sense 
than  under  the  charters.     The  law  was  the  constitution,  to  l)e  observed  by  all 
and  to  l)e  administered  by  agents,  chosen  directlv  or  indirectly  bv  the  peo- 
ple of  each  of  the  States  possessing  the  right  of  suffrage,  which  in  most  cases 
was  limited,  not  universal.     This  law  was  indeed  subject  to  amendment,  but 
until  amended  it  was  binding  upon  the  people  who  created  it  and  the  officials 
chosen  to  administer  and  to  observe  its  provisions.     The  law  of  the  consti- 
tution was  superior  to  the  act  of  the  legislature,  inasmuch  as  the  creature  of 
the  moment  was  regarded  as  inferior  to  the  provisions  of  the  constitution  in 
accordance  with  which  the  legislature  was  created  and  adopted.     The  consti- 
tution Itself  was  in  a  more  restricted  sense  the  creature  of  the  moment  and 
was  Itself  inferior  to  the  creator  of  all  political  power. 

It  was  to  be  expected  that  the  States  would,  in  the  matter  of  a  constitution  %°y'« 
for  their  union,  consider  themselves  as  the  source  of  law,  that  the  instrument  ° 
of  government  for  the  union  would  prescribe  in  explicit  terms  that  law 
whereof  the  people  of  the  States  were  the  source  and  the  origin,  that  it  would 
derive  its  power  from  the  people  of  the  States,  either  in  convention  created 
for  that  purpose  or  by  legislatures  of  the  States  representing  the  pe.>ple 
thereof,  and  that  the  form  of  government  for  the  States  would  be  based 
upon  the  form  of  government  drafted  by  the  States  themselves.  It  was 
further  to  l)e  expected  that  sovereign  powers  would  Ijc  transferrctl  from  the 
States  and  conferred  upon  the  government  of  the  union  for  the  common  k-ne- 
fit  of  the  States:  that  in  all  other  cases  the  States  would  reserve  to  themselves 
the  sovereign  powers  which  they  should  consider  necessarv  for  their  local 
interests  and  concerns,  and  that  if  this  distribution  of  sovereign  powers  did 
not  seem  to  safeguard  sufficiently  their  local  rights  and  interests  and  con- 


i  I 


ill 


140 


THE   UNITED  STATES:  A   STUDY   IN    INTERNATIONAL  0RGANI7aTI0N 


cerns,  they  would  insist  upon  its  amendment ;  for  both  by  the  State  constitu- 
tions and  by  the  Declaration  of  Independence  of  the  United  States,  govern- 
ment derives  its  just  powers  from  the  consent  of  the  governed. 

As  Mr.  Justice  Matthews  has  finely,  truly,  and  impressively  said  in  deliver- 
ing the  opinion  of  the  Supreme  Court  in  Yick  IV o  v.  Hopkins  (118  U.  S., 
356.  369),  decided  in  1886: 

VN'hen  we  consider  the  nature  and  theory  of  our  institutions  of  govern- 
ment, the  principles  upon  which  they  are  supposed  to  rest,  and  rev^w  the 
history  of  their  development,  we  are  constrained  to  conclude  that  they  do  not 
mean  to  leave  room  for  the  play  and  action  of  purely  personal  and  arbitrary 
power  Sovereignty  itself,  is,  of  course,  not  subject  to  la.v,  for  it  is  the  au- 
thor and  source  of  law ;  but  in  our  system,  while  sovereign  powers  are  dele- 
gated to  the  agencies  of  government,  sovereignty  itself  remains  with  the 
people,  by  whom  anil  for  whom  all  government  exists  and  acts.  And  the  law 
is  the  definition  and  limitation  of  power.  It  is,  indeed,  quite  true,  that  there 
must  always  he  lodged  somewhere,  and  in  some  person  or  body,  the  authority 
of  final  decision :  and  in  many  cases  of  mere  administration  the  responsibility 
is  purely  political,  no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
public  judgment,  exercised  either  in  the  pressure  of  opinion  or  by  means  of 
the  suffr.ige.  But  the  fundamental  rights  to  life,  liberty,  and  the  pursuit  of 
happiness,  considered  as  individual  posses.sions,  are  secured  by  those  maxims 
of  constitutional  law  which  are  the  monuments  showing  the  victorious 
progress  of  the  race  in  securing  to  men  the  blessings  of  civilization  under  the 
reign  of  just  and  equal  laws,  so  that,  in  the  famous  language  of  the  Massa- 
chusetts P.ill  of  Rights,  the  government  of  the  Commonwealth  "  may  be  a 
government  of  laws  and  not  of  men."  For  the  very  idea  that  one  man  may  be 
compelled  to  hold  his  life,  or  the  means  of  living,  or  any  material  right  es- 
sential to  the  enjoyment  of  iitc,  at  the  mere  will  of  another,  seems  to  be  in- 
toler.nMc  in  any  country  where  freedom  prevails,  as  being  the  essence  of 
slavery  itself. 


I 


VII 

THE  FEDERAL  CONVENTION:  AN  INTERNATIONAL 

CONFERENCE 

,JjTs  <!r  .1"''^J''\  "',^  Pi-^Pos'-l  "'•w  Federal  Constitution  for'thes^'^Sta^ir  Y^was 
engag  d  4  M,>nths  of  the  last  Summer  in  the  Convention  that  form'd  it.  It  is  r..,w  s^nt 
by  Congress  tn  the  several  States  for  the.r  Confirmati-.n.  If  it  succeeds.  I  flo  not  see 
«hy  yon  might  not  m  Europe  carry  the  Project  of  good  Henry  the  4th  into  Execnti  n  hy 
forming  a  I-e,  eral  L  num  and  One  Grand  Republick  of  all  its  different  States  &  Kingdoms'  by 
means  of  a  l.ke  Convention,  for  we  had  many  Interests  to  reconcile.  (Extrocr  hnTl'tl/r 
of  Benjamin  Frankim  to  Ferdinand  Grand,  Documentary  History.  Vol.  IV.  /■/.'  341-34;) 

m2\lt-''f^rZA^^''^i^^  '"  ''r''"'".«  ?  ■■''»•*  "<•  nation-  It  is  a  body  politic,  a  political  com- 
mers'' adorn. er^a'^^nr?,irT'%K'-'''"  '"''''''  boundaries:  who.  heing  separated  from  all 
HmTts  can  interfe  ^  Th.  ^  •*"■.""  "Z"  ^"vernment.  with  which  no  people  without  their 
«Ti Iv  ,mremr!-^h-  .  '  ^^T  •"'  "^'^  terminates  at  the  line  of  separation:  each  is  neces- 
th^  Li,TT  '"  ".\°*n.Ii(nits:  of  conseqnence.  neither  can  have  anv  iurisdiction  within 

na^ii?  power  n^^nnT;  *"''""*  "'  ^°"',T ■  ^^?  "=""^  «'^^"  «"  »"^''  comm.initv.  whether  state" 
n?  ,1;'^  *.  J  P«"P^.'"^  commonwealth,  is  only  to  denote  its  locality,  as  a  self-governing  body 
ot  men  muted  for  the.r  own  internal  purposes,  if  two  or  more  think   iroper  to  mi"    "?  com- 

.Tose.l'^ofT.el^e''  '"  "'l'''"'r  "^"  r"*'""  '^f  »">■  P""'-^  o^"  themselves,  hy  a  ,odv  com- 
ordirding  whLt  noMinn  '^f":'""  "'  "''^-  "''>■  ^""f'-^erate.  Each  has  the  nndouhte.l  rig^t 
ot  f  eciding.  what  portion  of  its  own  power,  it  will  authorise  to  Ik-  exerted  in  a  meeting  as- 
cnmmL  .  =""«:"'/  "'  =""  ^  what  it.  will  restrain,  prohibit,  or  qualify.  If  this  can  be  done  by 
fo^  ?,^?.r"  •  *".  '"""'  ?'  •^'■'"  ""*°"  "'•  •'^fin^'l-  an^'  according  to  their  P.n.refhey 
of  whteh  H. JT'^''^'^'^•  "^  ■'•=""•  °''  -  f'-'l"'-''  »r"vernmei,t:  the  purposes  and  powers 
of   which   depend   on   the   instrument  agreed   upon.     If  thev  cannot  agree    then   eirli    stat^ 

lh:'7t;?cs''lr  ''aTe'mhirdTv'''th"*"r  ?"  *'".,='"''  -"dT  tUn  1  X'bodyin Tlliclf  aH 
tne   states   are   assembled   by   their   deputies ;   each    state     s   considered    as   prcsmt    and    its 

ca  e  trm'rf'"nrm''s,'  r  h'T  "^  '"  M^F'^^^^-  The  congress  of  states  arrief  in  s„ch 
them    L  "il,  V  .'  ^""",  *'    "■'  enjoined,  ar.d   execute  such  powers  as  are  given  to 

creTn.^ku  .r""''""'^^'!.'',''^'^:'"«  i"»t"'c'>""ns :  the  extent  of  which  is  testih.d  in  tl  e 
credentials  of  the  separate  delegations,  as  before  the  confederation  of  1781.     (Mr    Justice 

His    Excellency    Thomas    Collins,    Esquire.    President.    Captain    Cn-neral     aod 

shlnTmrr"   ?"''  t'  the  J^''\w"e   State:   To  all  to  whom   thele   Presents 

hv    he  r,n,Erv    "^^  K^"T  l^"'  •'^'*  """""^  ^^'^  '-^^^  "'  the  said  State,  passed 

by  the  General  Assembly  of  the  same,  on  the  third  day  of  February,  -n  the  ^^  ar 

I     .u     ^1  I   I'r    ''nf  thousand  seven  hundred  and   Eighty  seven    it  isthiis  inroi     ' 

In  the  Eleventh  Year  of  the  Independence  of  the  Delaware  State 

p.,-^",^^"'.?PPo,"7l"8  'leP'ities  from  this  State  to  the  Convention  proposH  to  be  hebl  in  the 

City  of  Philadelphia  for  the  Purpose  of  revising  the  Federal  Constitution 

\\hereas  the  General  .\ssembly  of  this  State  are  fully  convinced  of  the  \ecesMn-  o* 
reMsing  the  Federal  Constitution,  and  adding  thereto  such  further  Provision,  as  rn^y  render 
the  same  more  adequate  to  the  Exigencies  of  the  Union:  .And  Whereas  the  T?gisTate 
of  Virgima  have  already  passed  an  Act  of  that  Commo,:wealth,  appointing  and  aXrl  in^ 
certain  Commissioners  to  meet,  at  the  City  of  Philadelph'-  in  May  next  a  Gmv-en  on  .^ 
tommissioiurs  or  Deputies  from  the  different  States  :\-..  this  StStfi-elng  willit^g  and 
desirous  of  co-operating  with  the  Commonwealth  of  Virginia,  and  the  othe?  Sta  e  hi  the 
Confederation,  in  so  useful  a  design.  states  in  tne 

Be  it  therefore  enacted  by  the  General  Assembly  of  Delaware   that  r»,^r„«  n«,j    n 
Bedford,  John  Dickinson,  Robert  Bassett  and  Jacoir Rroom^E^n  'r\-s''a~;'',  e^e    'am"" 
Deputies  from  this  State  to  meet  in  the  Convention  of  the   Denuties  nf  n.ifil   .?;'' ""'t','^ 
be  held   at   the   City  of   Philadelphia   on   the   Secoml   day   of    ^?  y"nex  :"'A;rt'h  "sa  d 
George  Read,  Gunning  Bedford,  John  Dickinson.  Richard  Ras.ctt  anH  Tac"'-  nr^-"     f- -r-- 
or   a.iy    three   of   tl.eni.   arc   MereUy  constituted   and   appointed   Deputies    from  "ihis"  State! 

141 


(Seal) 


<?     . 


sr.i     i 

1  i 


142 


THE   UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 


Passfd  at  Dovrr. 
February  3'.  1787, 


with  Powers  to  meet  such  Deputies  as  may  he  appointeil  anH  authoriied  by  the  other  States 
to  assemble  in  the  said  Convention  at  the  City  aforesaid,  and  to  join  with  them  in  devising, 
dflihcratms  on,  and  chscussinR,  such  .\herations  and  further  Provisions  as  may  be  neces- 
sar>  to  render  the  Fcrderal  Constitution  adequate  to  the  ExiRencics  of  the  Unwn ;  and  in 
reporting  such  Act  or  Acts  for  that  purpose  to  the  United  States  ii.  Congress  Assembled, 
as  when  agreed  to  by  thiiii,  and  (hily  confirmed  by  the  several  States,  may  effectually  pro- 
vide for  the  same:  So  always  and  Provided,  that  such  Alterations  or  further  Provisions 
or  any  of  thcni,  do  not  extend  to  that  part  of  the  lifth  Article  of  the  Confederation  of 
the>sai<l  States,  finally  ratified  on  the  f^rst  day  of  March,  in  the  Year  One  thousand  seven 
hundred  and  eighty  one,  which  declares  that  "  In  determining  Questions  in  the  United 
Slates  m  Congress  Assembled  each  State  shall  have  one  Vote." 

And  be  it  enacted  that  in  Case  any  of  the  said  Deputies  hereNv  nominated,  shall  happen 
to  die,  or  to  resign  his  or  tlieir  Appointment,  the  President  or  Commander  in  Chief  with 
the  Advice  of  the  Privy  Council,  in  the  Recess  of  the  General  Assembly,  is  hereby  au- 
thorized to  supply  such  Vacancies 

Signed  by  Order  of  the  House  of  Assembly, 
John  Cook.  Speaker 

Signed  by  Order  of  the  Council 
Geo  CR.xcHEAn.  Speaker. 

.\ll  and  singular  which  Premises  by  the  Tenor  of  these  Presents.  I  have  caused  to  be 
Exrmphhed.  In  Testimony  whereof  I  have  hereunto  5nbscril)ed  my  Name,  and  cau.sed  the 
Great-Seal  of  the  said  Staie  to  be  affixed  to  these  Presents,  at  .New  Castle  the  Second 
day  of  .April  in  the  \ear  of  our  Lord  One  thousand  seven  hundred  and  eighty  seven 
and  in  the  Eleventh  Year  of  the  Independence  of  the  United  States  of  America 

..     ,  Tho»  Coluns 

Attest 

J.\  Booth,  Sec'. 

( InslrucHims  of  Delmvare  Slate  to  Us  Delfgalcs  in  the  Phihdelfhia  Federal  Convention 
of  itST.  Documentary  History  of  the  United  States.  1786-1870,  I'ol.  I,  1894,  pp.  JJ-^S-) 

Department  of  State, 
ICashington,  April  18.  1S99. 

Gentlemen:  You  have  been  appointed  by  the  President  to  constitute  a  commission  to 
represent  him  at  an  international  conference  called  by  His  Imperial  Majesty  the  Emperor 
of  Kussia  to  meet  at  The  Hague,  at  a  time  to  be  indicated  by  the  Government  of  the 
.Netlierlands.  for  the  purpose  of  discussing  the  most  eflicacious  means  of  assuring  to  all 
peoples  the  "  bcnehts  of  a  real  and  durable  peace." 

Upon  your  arrival  at  The  Ha^ue  you  will  effect  an  organization  of  your  commission, 
whose  records  will  be  kept  by  your  secretary.  Hon.  Frederick  W.  Holls.  .\II  reports  and 
conimuiiications  will  be  made  through  thi:.  Department,  according  to  its  customary  forms 
for  preservation   in   tlie  archives.  ' 

Tlic  programme  of  topics  suggested  by  the  Russian  minister  of  foreign  affairs  for 
discussion  at  the  conference  in  his  circular  of  December  30,  1898,  is  as  follows:  .  .  . 

1  am,  etc., 

John  Hay. 

irnslruclions  to  the  .hncriean  Delegates  at  the  First  Ilanue  Peace  Conference  iSgo 
Papers  Kelatnuj   to   the  foreign   Relations  of  the   United  Slates.  1899,  pp.  311,  5/}.) 


Depaitment  of  State, 
tl'ashint-toii,  .y.y  ji.  1907. 
Gentlemen:     'iou  have  been  appointed  delegates  plenipotcnti.iry  tu  represent  the  United 
btates  at  a  bccond  Peace  Conference  which  is  to  meet  at  The  Hague  on  the  15th  of  June 


1W7. 


at  any  time  regarding  the  meaning  or  effect  of  these  iiistnielions,  or  should  you  con- 
sider at  any  time  that  tliere  15  occasion  for  special  instructions,  you  will  communicate 
freely  with  the  Department  of  Stnte  by  telegraph.  It  is  the  President's  earnest  wish 
that  you   may  contribute  materially  to  the  effective   work   of  the  conference  and   that  its 


nil.  FtuicRAL  convention:  an  international  conference  143 

mo;^'^;;":.""'  """  '"  "'"'"'«  -»-"»'--""  J-tice  more  certain  ana  international  peace 
I   am,  gentlemen,  your  obedient  servant. 

Elikl-  Root. 
(.'nstructions  l„  III,-  .hiicritan  Pil.-^al.s  of  the  Vnilcd  <;tni.-,  i,  il,.  ii  n 

tcre„.c  of  .,or.  ron;,„  H,,a,un,s  of  /),.•  r„,'..!/'Vf.;;4':1  J;;'';^.;'V';:;,/';;i^:-/;;;.7  '^'"'- 

t..e^:.i'^'1.^'S'.^;::"ll^^;  c::i;::!r^:.[:r,^r^:  a.,.h.,ri.inK  any  m.n,bcr  to  call  for 
Convention  vvJre  not  to  h.ncl  ti.-  Co  ,.",,,, 1  I.  '"""""■  "••■  "■•«'•''  "'•'•  "s  the  acts  ol  the 
tl,e  votes;  and  m/ppVer  a     cl,a   ..eC  ,^  '•^'"'^"  ""*  ^■^"^"'^^-  of 

co„sn>uuo„  o,  ,„.■  n,.ua  s.Js  Jf  A:,::^!^a. ;;;?;  Wo,V:,h  'i^tni::::;^.  i;::^::?  "^  '"^ 

iRull  ':/'Mr^.i:]/''&7r'-C^:S.^::;^''^':,::?- -•^.--  vo,e  <,,  eac„  Commission. 
Kach  delepation  has  a  rieht  to  only  one  vote 

«a,/o„a,.  .,  ,a  pair.  J  Haye  .5  ;«m"Z;:6.:;,^r^:;;,';7;.,^;,'^:;:;  ""- 

The  Katification  of  the  Conventions  of  ninr  «;ntpc    .,l.aii  1  ,r   ■         ^        ■      ., 

men,  of  th.s  C.-nst,.o„on  h.tween'Z  Su^'^cf'^^^^^'.^^^     ;;;'""  '"■•  "'^   '^'•«'''i^''- 

Ue  have  hereunto  snbscr.he.i  our  Names.     ,  7A.-  C.,,;;;^' ll  ;„^:/^!l:!'r,!;;,;i^  ;!;:;^^;^'j^;^- 

pos-:^;,l"i^  Tile  HrKn';'T'o,u:'"arai;"tl,/'r''   '"  "''''"''   •■"',"""■   -"ifi-^'i-   sl-11   he   ,te- 
ann.xed  are  in  a  posi.jm,  n,  !|n  so  n,e,uu,ned  n>  .Article  15  and  in  ,l,e  table 

if  ^e'"r!;;^";;';L'h";ri^^r"!  r'::^l>'furn!:l:^:;i,;"iT  --r"."-,^"*-  j-.  1909. 

the   Court,   qi.alitied    ,o   v  ah  IK    .-,   Kti  .  te    i    Cul,  '      *".?    ^1"'    """•"  *'''"">'   J"^S<^'*    '" 

until  this  .ondiiinn  is  fnltille'l     """"""'   ^   *-"""•     '^  ""*•  'l'^'  'I'Po^it   shall   ho  postponed 

of  thri:^Hh'a,,ons",!;:;:ni;;!a::;iTv;;dfsi'^:;;:;;;,i;^^        "-"•!):=  f--  •>-  .leposit 

p,r^^'fo;;j;:'i^  tfl^'nc^^l^Jh  o^XTml  '^-''T^  novemment  in  this  its  n,ost 
pendau   in   those  matters  ^vhl;^oncern^t/  em^7  ;;,r^oV're  ^Sr'h^^  '■""^- 

and  even-.hc  ,1,  tails  of  i""  Zu"  c  ,'st  ,  ,i  "  V  d  ,"^111"'."^"""'"'"  J"^-l>-"'-"e. 
privilege  or  conc.-sion  fnm,  a...v  hi!-!  cr  n     "r    h-'t         ,  l^^^u^^  'I"  this,  not  as  a  ,„atl.T  „f 

perf.!^-,Iy   indepeluien     w      i'VtV     w      s^  ere"'\vu\he^^^^^^  ".!"    "T-     'V"-''    "'""'"    '' 

dependence,  or  rather  its  separate  •si.'^'nc  '  'a  ,\s  U  •i""?"'"/!;''".'-- ,'"  »''*'•''  *'*  "'- 
soverei>;nty  on  one  dass  of  l„h,e',  h,  Ihtc  s  1  ,otb.  r  7,  ""' ;"-'V^"''  -very  rij,,,,  „f 
as  incapable  of  separate  p,.li,i,..a  ari.nn^/s  a  ,v  pron'r;i;v''nf'  '"''''  "",  "''''^■''  '  '' 
indivisible  repnbbc.  The  makinir  nf  neac  a  id  «"r  h,  s,^ ,  i„  "'  ,"•""•"■;■'»■  "r  of  an 
bassadors.  generally  all  .bat  comes  «„hin  the  ,!e  "rim en.  '  ."ern',';  ,,^'"'1''"'''  "'ii''","- 
reserved   wholly   ,0   -be  central    power.      Indeed    .be   ver"  "li    en  '     n     ,  '7'    "''     '* 

of  the  Tnion  will  be  .liploma.icillv  nnWnow,,  t,'.  fore  ^Tn,  1 :;,  .I  J,/^' ,r;.r:;  ,"'"'  .TJ 
upon  to  deal  w,th  any  pow.r  except  the  Central  C.nvernlne.,,  A  p.  er"  V'  i  "  t  ^ 
wdl   form  one  State   ...  relation  to  other  powers,  but    ma..v   S.a.es   a'   re'-a-"      :.     --t'n",' 


"t    ) 


il  i 


11 


SI 


144 


THE   UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


administration.  This  complrte  division  o{  soverelKnty  we  may  look  upon  as  essential  to  the 
absolute  perfwtion  of  tlir  Federal  ideal.  (Edivard  .t.  l-reeman.  History  of  Federal  Covem- 
ment.  from  llir  fcundalUm  of  the  Achaian  League  to  the  ditntftioH  of  Ike  United  Stales 
Vol.  I,  1863.  /./>.  3-4.) 

The  distribution  of  powers  is  an  essential  feature  of  federalism.  The  object  for  which 
a  federal  state  is  formed  involves  a  division  of  authority  between  the  national  government 
and  the  separate  Stales.  The  powers  given  to  the  nation  form  in  etftct  so  many  limitations 
upon  the  aiithorit}'  of  the  separate  States,  and  as  it  is  not  intended  that  the  cviitrat  govern- 
ment should  have  the  opportunity  of  encroaching  upon  the  rights  retained  by  the  Stales, 
its  sphere  of  action  iiecissarily  becomes  the  object  of  rigorous  definition.  The  Constitution,' 
for  instance,  of  the  I'nited  Slates  delegates  special  and  closely  defined  powers  to  the 
executive,  to  the  legislature,  and  to  the  judiciary  of  the  Union,  or  in  effect  to  the  Union 
itself,  whilst  it  provides  that  the  powers  "not  delegated  to  the  United  State*  by  the  Con- 
stitution nor  prohibited  by  it  to  the  States  are  reserved  to  the  States  respectively  or  to  the 
people." 

This  is  .ill  ihe  amount  of  division  whiih  is  essential  to  a  federal  constitution.  But  the 
principle  of  definiton  and  limitation  of  powers  harmonises  so  well  with  the  federal  spirit 
that  It  is  generally  carried  much  farther  than  is  dictated  by  the  mere  loqic  of  the  constitution. 
Thus  ihf  aiiihorily  assigned  to  the  I'nitid  St.'.tes  under  the  Constitution  is  not  concentrated 
in  any  single  official  or  body  of  officials.  The  President  has  definite  rights,  upon  which 
neither  Congress  nor  the  judicial  department  can  encroach.  Congress  has  hut  a  limited, 
indeed  a  very  liniitcd.  power  of  logisl.ilion.  for  it  can  make  laws  upon  eiifhteen  topics  only; 
yet  within  its  own  sphere  it  is  independent  both  of  the  President  and  of  the  Federal  Courts. 
So,  lastly.  Ihe  indici.Try  have  their  own  powers.  They  stand  on  a  li-vrl  both  with  the 
President  and  with  Congress,  and  their  aiithoritv.  (being  directly  derived  from  the  roh- 
stitution)  cannot,  without  a  distinct  violation  of  law,  be  trenche<l  upon  either  by  the  execu- 
tive or  liy  the  legislature.  (.Ilhfri  I'fnn  Pic  y.  Intrnduclian  lo  the  Study  of  the  Law 
of  the  Conslilutioit,  tSSf.  Sih  edition,  igif.  pf.   117-iig.) 

It  is  impossible  to  imagine  liln-rty  in  its  fulness,  if  the  people  as  a  totality,  the  country,  the 
nation,  whatever  name  may  tie  preferred,  or  its  government,  is  not  independent  on  foreign 
interference.  The  country  must  have  what  the  Greeks  called  autonomy.  This  implies,  that 
the  country  must  have  the  riiflit.  and.  of  course  tlie  power,  .if  istahlishing  th.it  government 
whicli  it  considers  best,  without  interference  from  without  or  pressure  from  above.  No 
foreiifuer  must  dictate;  no  extra-governmental  principle,  no  divine  right  or  "principle  of 
legitimacy"  must  act  in  the  choice  and  foundation  of  the  government;  no  claim  superior 
to  that  of  the  people's,  that  is,  national  sovereignty  must  be  allowed.  This  independence 
or  national  self-government  farther  imnlies  that.  Ihe  civil  government  of  free  choice  or 
free  acquiescence  being  established,  no  influence  from  without,  besides  that  of  freely  acknowl- 
edged justice,  fairness,  and  morality,  must  he  admitt'-d.  There  must  then  he  the  requisite 
strength  to  resist  when  necessary.  (Francis  l.icher,  On  Ciril  Liberty  and  Self -Government, 
18 f 3.  Vol.  I.  p.  73.) 

The  teiylencv  plainlv  is  towards  a  more  centralized  government  by  a  freer  interpretation 
of  the  I'niti'd  Stales  Constitution.  T'-c  (t.ii.gers  which  menace  us  from  this  tendency,  and 
from  what  may  he  callecl  <lomocratic  al'^traction.  are  met  by  such  a  book  as  this,  whicli 
teaches  that  there  is  no  safe  liberty  but  one  under  checks  and  guarantees,  one  which  is 
articulated,  one  which  by  institutions  of  local  self-government  educ.ntcs  the  whole  people 
and  moderates  the  force  of  administrations,  one  whirli  sets  up  the  check  of  state  power 
within  certain  wcll-detincd  limits  a.gainst  United  States  power,  one  which  draws  a  broad 
line  lietween  ihe  unore  r'i/eil  m.isses  of  nun  c.nltinir  themselves  the  people  and  the  people 
formed  into  bodies,  "joined  together  and  compacted"  by  constitutions  and  institutions. 
( r/ic. '(/urc  n  ir, iithcy.  Inlrpduclin  to  Third  F.iiition  of  Francis  Lichcr,  On  Cizil  Liberty 
and  Self-Cio:ernmcnt,  1874.  f-  '<>■) 

We  know  no  reason  in  the  nature  of  things  why  a  state  should  be  any  the  better  for 
being  lar(.'e.  and  Ix-cause  throughout  the  greater  part  of  history  very  large  states  have  usually 
been  states  of  a  low  type.  (Sir  John  Robert  SeeUy.  Exfansion  of  England,  1SS3,  American 
edition,  />.  i94.) 


f 


CHAPTER  VII 

THE    FEDERAL    CONVENTION:    AN    INTERNATIONAL   CONFERENCE 

JJ  Z)  r'TI''  ''  •""'  "'■''''-■  ''''^"  '"''"'*•'*'  ""^'  "^^^  anundmcus  ,„  the 
^hch  ,he  Articles  formed  the  instrument  of  government,  was  to  )^  perpetual 
nn,l  no  mstr.iment  could,  even  in  the  opinion  of  its  framers  be  lookeTZn  ,. 
.o  perfect  as  not  to  he  susceptible  of  mo<.ifications  under  cha^gir,'lr„T 
he  Articles  were,  as  a  matter  of  fact,  defective,  or  were  thought  toToiv 
large  lx3dies  of  people  in  all  the  States.  At  any  rate,  their  provfsi  ,ns  were  not 
observed,  and  .t  was  apparent  that  modifications  would  have  to  b^^  mlde  ,  the 

h  s "Zded  '■«  r"'"  ^""  ''  '  '-'''  ^""'-''^  '°  ^—  the  Xnlc  Va 
hs  amended.        Every  state     was.  to  quote  the  language  of  Article  13   to 

n^^:^^:T"l  1 '''  ""'^"  ^'"-  '"  -"^-  --"^>^'  '  "  a" 
q  .^  ions  which  by  this  confederation  are  submitted  to  them."  «     This  unfor- 

rst^'T'  ", . !'  T  "^-^^ ''''''''' ''''  ^'^  ■^■^-'-  «^  ^o  '   - 

™a^^  and  rhat"        '      ""i!'  '-  "'^^  '''''•"  '"^^^  ^^^  "-"  ^^ould  be 

ana  t,e  afterward,  confirmcl  hv  the  legislatures  of  everv  state  - 
dinlonntrr""'""'  °^  "" ""'"ity.  natural  enough  and  indeed  proper  in  a  ^--''. 
'h    comrar;        T"'","''  ^°  "^  ""'^^^'^'""'^  ""'-'^  '»^-^  ^  a  stfpuSion  to  ^^i^^-J-o„ 

took  advantage  of  the  meeting  of  delegates  of  that  State    nd  of  M.^Z 
concerning  the  ireedom  of  navigation  of  the  Potomac  and  of  tt  CwX 

patc^"  r- ^s  s;r- :t::s-ris^-    -i^ 

crvin.  need  of  the  Confederation  was  such  a  modificatL  of 


Tftf 


Articl 


CoHSlilHlions  oi  lit, 


es  as 


•''  liiJ,-pcnd,-nt  States,  1781.  pp.  201-2. 


4 1 


145 


146 


THE   UNITED  STATES:   A   STIDY   IN    INTERNATIONAL  ORGANIZATION 


would  vest  the  general  government  with  power  to  regulate  commerce  and 
navigation,  and  by  means  thereof  or  by  other  means  to  acquire  a  revenue  for 
the  purposes  of  government.  A  revision  limited  to  a  part  of  the  field  might 
have  enabled  the  Confederation  to  continue  as  thus  modified  until  a  more  fav- 
orable occasion  should  present  itself  for  a  revision  of  the  scheme  of  govern- 
ment PS  a  will  lie. 

Of  the  thirteen  States  invited,  nine  accepted  the  invitation  and  appointed 
delegates,  but  of  the  nine  only  the  delegates  of  live  arrived,  and  the  representa- 
tives of  N'irijinia,  Maryland,  New  Jersey.  Delaware  and  New  York  properly 
concluded  that  it  would  serve  no  useful  purpose  to  draft  a  jilan  to  \ie  accepted 
by  all  when  onlv  five  of  the  States  were  sufTiciently  interested  to  have  their 
delegates  take  part  in  the  convetuion.  Therefore  they  wisely  limited  their 
report  presented  to  the  States  and  likewise  to  the  Congress,  to  a  statement 
of  the  needs  of  revision,  and  they  recommended  a  conference  of  ilelegates 
of  all  the  States,  to  meet  in  Philadelphia  the  second  Monday  of  May  in  1787, 
"  to  take  into  consideration  the  situation  of  the  United  States,  to  devise  such 
further  provisions  as  shall  appear  to  them  necessary  to  render  the  constitution 
of  the  I'eder.d  Ciovernment  ade<|uate  to  the  exigencies  of  the  I'nion:  and  to 
report  such  an  act  for  that  purpose  to  the  United  States  in  Congress  as- 
sembled, as,  when  agreed  to  bv  them,  and  afterward  confirmed  by  the  Legis- 
latures of  every  State,  will  etTectnally  i)rovide  for  the  same."  ' 

As  the  initiative  came  from  the  States,  it  was  natural  that  those  States 
most  interested  in  the  revision  of  the  Articles  should  take  action,  even  liefore 
the  Congress  should  recommend  the  States  so  to  do.  It  was  i)erhaps  necessary 
to  ilo  this  in  order  that  the  Congress  should  see  the  advisability  of  action  on 
its  part,  lest  it  might  .seem  to  lie  forced  to  move,  and  thus  to  lose  the  credit 
ot  directing  what  its  members  could  not  seemingly  prevent.  Therefore,  after 
the  St.-ite  of  \'irginia  (October  16.  1786).  the  State  of  New  Jersey  (  N'ovem- 
IxT  2i.  1786).  the  State  of  Pennsylvania  ( Deceml)er  iO.  1786),  the  State  of 
\orth  Carolina  (January  6,  1787).  the  State  of  \e\v  Hampshire  (January  17, 
1787).  the  State  of  Delaware  (  February  .S.  1787).  and  the  State  of  fieorgia 
(Fel)ruary  10.  1787)  had  complied  with  the  recommendation  of  the  .\n- 
napolis  Convention  and  had  ai)pointed  their  delegates  to  the  meeting  in  Phila- 
delphia, the  Congress,  on  I'ebruary  21,  1787,  passed  the  following  resolution: 

Whereas  there  is  provision  in  the  .\rticlcs  of  Confederation  &  periK'tual 
Uiiiiin  fur  making  altcratioiis  therein  by  the  .\ssent  of  a  Congress  of  tlie 
United  .^tates  and  of  the  lcgi>Litures  of  the  several  States;  And  whereas  ex- 
perience hath  evinced  tli.it  ihtTf  are  defects  in  tiie  present  Confederation,  as 
a  iiuan  to  remedy  wliiili  sevt'ral  of  the  States  and  particularly  the  .State  of 
\ew  York  by  express  iii>tructioiis  to  their  (k-legates  in  Congress  have  sug- 
gested a  convention  for  tlu'  purposes  expressed  in  the  following  resolution  and 


THE    FEDERAL   CONVENTION:   AN    INTERNATIONAL  CONFERENCE  147 

fhe?/,T'"*'fi''"  "Pr*"""'?  *o  ^  tfic  most  probable  m^an  of  establishinif  in 
these  states  a  firm  national  government  "sning  m 

Momhv'ir\'{'f  n  "I''  T"""  "f>'"">f/''^''  it  i^  expedient  that  on  the  second 
Alonda)   m  May  next  a  Convention  of  delejiatcs  who  shall  have  ken  an- 
pomted  by  the  several  states  be  held  at  Philadelphia  for  the  sole  am   express 
purpose  orev.smg  the  Articles  of  Confederation  and  reporting  to  (W 
gress  and  the  severa    legislatures  such  alterations  and  provisions  UiJrein  as 
er    In    ■,'VT""*''  V  '"  ^""^'''^  '■""'  ^'""■'n'H.d  bv  the  States  render    he  fed 
tlo^n'  oTtheTS.;'"'"""^  '"  "'^'  ^■•^'^"■"^'^■^  °^  ^-™'  &  the  pie^el^t 
In  conse.|uen«..  of  this  action  of  the  Congress,  the  State  of  New  York 
(February   'S.   1.87).  the  State  of  South  Carolina  (March  8.  1787),  the 
State  of  Massachusetts  ( .\pril  9.  1787).  the  State  of  Connecticut  (Mav  2. 
1/87).  and  the  State  of  Maryland  (May  26.  1787)  acted  favorably  upon  the  „ 
nu'r.T/        "  ^"''  •''PP"*"'^''  delegates  to  the  conference  of  the  States  in  ''^"^ 
rh,hulelph,a  thus  accounting  for  all  the  States  with  the  exception  of  the  State 
of  Rhode  Island,  which,  in  its  sovereign  pleasure,  or  .nrrhaps  it  mav  l)e  more 
accurate  to  sav.  displeasure,  reft.sed  to  cast  its  lot  with  its  sister  States   al- 
though  the  lK"tter  elements  of  the  State,  if  their  onn  testimony  is  to  he  taken 
had  attempted  to  line  up  the  little  Commonwealth  with  its  eouals   if  not  its 
l)etters. 

The  second  Monday  of  May  came,  hut  the  delegates  did  not.  On  the  14th 
day  of  the  month,  the  Virginian  delegation,  with  George  Washington  at  its 
head,  arrived  at  Philadelphia  on  time,  where  thev  were  met  bv  the  Pennsyl- 
yan.an  delegates,  who  would  have  f.uin.l  it  difficult  to  be  elsewhere.  A  ma- 
jority of  the  States  was  obtained  for  tbo  first  time  on  Mav  25.  1787  On  that 
day  the  conference  held  the  f.rst  of  its  sessions,  which  was  n.it  to  revise  the 
Articles  of  Confederation  and  to  make  them  adc<|uate  for  the  purposes  of 
union,  but  to  create  a  more  perfect  Union,  the  model,  as  many  think,  of  or- 
ganization for  the  society  of  nations. 

In  the  interval  Ivtwcen  these  two  jx-riods  the  Virginian  delegation  met 
some  two  or  three  hours  a  day  to  consider  the  tiuestions  to  come  licfore  the 
convention  and  to  put  their  views  in  the  form  of  resolutions  which  might 
serve,  in  the  absence  of  others  better,  as  a  basis  of  <Iiscussion  and  of  the  future 
instrument  of  gov  emment.     They  also  met  and  exchanged  views  with  the  dele- 
gates of  the  other  States  as  they  arrived,  an.l  especially,  it  would  seem  entered 
into  friendly  and  confidential  relations  with  the  Pennsvlvanian  members       \„ 
incident  which  happened  l«fore  the  opening  of  the  conference  is  rec.rde.l  by 
Mr.  Madi>on,  a  member  of  the  X'irginian  .lelegation  destined  to  be  the  re- 
porter of  the  c.Miterence  and  to  Iw  regarded  as  the  father  of  the  Constituti..n 
Jiist  as  General  Washington,  another  Virginian  delegate,  was  and  i.  the  father 
of  the  country.     Interesting  in  it.self.  the  incident  has  a  permanent  value  in 
'  "-cumcntary  HUlory  of  the  CoHstitution  of  the  United  States  of  .hneriea 


♦; 


J  i\ 


I'! 

i  1 


M 


^■1 


7& 


IV,  p. 


II' 

m 

■ii  f 


148 


THE   t.NITED  states:  A   STIDV   IN    INTEBNATIONAL  OBGANlZAHo.S 


Laric  and 
Small  SutM 


OrKaniration 
of  the  Fcdrral 
Convention 


that  it  shows  the  attitude  of  some  of  the  delegates  of  the  larger  States  whiia, 
it  is  believed,  was  shared  consciously  or  unconsciously  by  that  class  of  rq)re- 
sentatives.  It  also  disclo'  .s  their  attitude  in  advance  and  explains  their  pur- 
pose in  the  course  of  pnxreedings. 

It  appears  that  Couvcrneur  Morris,  with  the  support  of  Roliert  Morris 
and  of  others  from  Pennsylvania,  opposed  "  as  unreasonable  "  the  c()nces>i,m 
of  an  e<iual  vote  to  the  little  States,  on  the  ground  that,  armed  with  etjuality, 
the  delegates  of  the  smaller  States  would  Ir  enabled  "  to  negative  every  g.Hxl 
system  of  K.,vemment  "  which  the  delegates  of  the  larger  Stat.  ^  might  pro- 
pose, which,  in  the  opinion  of  such  delegates  "  must  in  the  nature  of  things  be 
founded  on  a  violation  of  that  equality."  The  N'irginian  delegates,  however, 
forecast  the  conse<iuences  of  such  action  on  the  part  of  the  larger  States  at 
the  opening  of  the  convention,  as  likely  to  "  Iwget  fatal  altercations  Iwtween  the 
large  and  small  States."  They  felt  that  the  attempt  if  matle  at  this  time 
would  fail,  whereas  the  smaller  States  might,  in  the  course  of  delate.  l)c 
prevailed  upon  "  to  give  up  their  e<iuality  for  the  sake  cf  an  effective  govern- 
ment." They  therefore,  to  quote  James  Madison's  account  of  the  incident, 
"  di.scountenanced  and  stifled  the  project."  • 

It  is.  however,  important  to  k-ar  this  incident  in  mind,  as  it  shows  the 
atmosphere  of  the  convention,  overcast  before  its  opening  and  soon  to  \te 
charged  with  electricity.  The  opposition  Ix-tween  the  large  and  the  small  ap- 
pears to  he  inherent  in  the  nature  of  things  and  to  come  to  the  surface  during 
the  proceedings  of  an  international  conference.  The  little  States  insist  ujotu 
equality  of  representation,  and  upon  their  e(|iiality  of  rifjht  to  present  their 
views  an<l  to  have  them  delated,  even  although  if  treated  with  courtesv  and 
kindly  consideration  they  are  disposed  to  adopt  the  projects  of  the  larger 
States  if  convinced  that  they  are  meant  for  the  good  of  the  whole. 

On  tlie  23th  of  May  the  delegates  of  seven  States.  Inring  a  majority  of  ihe 
original  thirteen  which  had  declare.!  dieir  indejx-ndence  of  the  mother  country 
on  July  4,  17"6.  and  whose  independence  was  recognized  by  the  mother  country 
on  Siptumber  7.  17f<3.  ha<l  arrived,  and  on  that  day  they  proceeded  to  the  hall 
in  which  that  independence  had  In-en  proclaimed  and.  in  conference,  to  hit 
upon  a  plan  for  its  maintenance,  collectively  as  well  as  individually.  As  is  the 
wont  of  international  conferences,  the  leading  niemla-r  of  the  State  in  which 
the  conference  was  held  opened  proceedings.  In  the  place  of  Benjamin  I->ank- 
lin.  President  of  Pennsylvania,  unavoidably  absent.  Rolx-rt  Morris,  a  tlele- 
gate  from  that  State,  to  quote  Mr.  Madison's  Notes.  "  informed  the  mem- 
l)ers  assembled  that  by  the  instruction  &  in  la-half  of  the  deputation  of  Pen', 
he  proposed  f.eorge  Washington.  K.s(|'.,  late  Commander  in  chief  for  presi-^ 
»  Madison  Papers,  Gilpin  ed.,  1841,  Vol   ii,  p.  726  note. 


THE   >EDKKAL   CONVENTION:   AN    INTE«NATIONAL  CONFERENCE  149 

.I«it  of  the  Convention."  »     A,  is  also  the  wont  of  international  conference, 
he  <le,egatc  of  another  and  a  lea.ling  State  secn.led  the  nomination,     fn 
this  instance  U  wa.  John  Kutie.Ipe  of  South  Carohna  who  expressed,  as  is 
ordinarily  done  on  such  cKcasions.  his  confidence  that  the  choice  wo.il.l  be 
unanimous  ol^ervuiR  w.th  greater  truth  than  is  customary.  "  that  the  presence 
of  Gen.  Washington  forlxicle  anv  oh^ervations  on  the  occasion  which  might 
otherwise  I*  pro,K;r."  »     On  this  transaction  .Mr.  Ma.lison  makes  the  proper 
comment  that  "the  nomination  came  with  particular  grace  from  i'enna.  as 
Uoc  ,  I-ranklin  alone  could  have  iKrcn  thought  of  as  a  com,K;titor.     The  Doc' 
was  himself  to  have  made  the  nomination  of  General  Washington,  but  the 
state  of  the  weather  and  of  his  health  contlned  him  to  his  house."  »     And  it 
may  be  said  in  this  connection  that  Washington  an.l  Franklin  were,  by  their 
res|,ect.vc  achievements,   the  two  great  personalities  in  the  convention,  in 
which,  according  to  the  account  of  a  contemporary,  they  moved  with  great 
caution  and  circumspection. 

As  is  not  the  wont,  however,  of  international  conferences,  the  election  was 
by  ballot,  which,  in  the  case  of  Washington,  coul.l  only  result  in  a  unanimous 
election,  after  which  he  was  conducted  to  the  chair  bv  Messrs.  Morris  and 
Kntledge.     Thereuix.n,  "  in  a  very  emphatic  manner."  to  quote  Mr.  Madison 
he  thanked  the  ( .,nvcntion  for  the  honor  thev  had  conferred  on  him    re- 
>.  nded  them  of  the  novcltv  of  the  scene  of  business  in  which  he  was  to' act 
lamented  his  want  of  In^tter  qualifications,  and  claimed  the  in.lulgence  of  the 
House   towards   the   involuntary   errors   which    his   inexperience   mi-'ht   oc- 
casion."*    This  langu.-ige  is  also  the  language  of  international  conferences 
l.ut  It  was  invariably  Washington's  attitude  tow;,rd  himself  in  private.  an<l  in 
public  on  the  three  great  occasions  in  which  he  apr«?are.l  Ix-torc  his  countrv- 
men.  here,  on  accepting  the  chief  comman.l  of  ,he  American  armies,  and  on 
iHJing  proposed  an.l  elected  President  of  the  rnited  States. 

As  was  also  the  wont  of  intornati.>naI  conferences,  a  delegate  from  Penn, 

.ylvania   m  tins  instance  Jamc.  W  ,|son.  proposed  the  appointment  of  a  secre- 

ary  a-d  nommate.l  William  Temple  IVanklin.  ^^hose  selection  would  have 

l3een  ag.eeal.le  to  the  authorities  of  Pennsylv.-inia.  inasmuch  as  he  was  ,l,e 

grandson  ol  its  venerable  chief  executive.     Hut  as  the  nomination  was  made 

in  a  conlerence  of  the  American  States,  accustomed  to  think  and  to  act  fur 

themselves  an.l  to  choose  those  vxhoin  they  really  wanted,  not  those  who  were 

,mpc>sed  u,M,n  them.  Mr.  Franklin's  nomination  di.l  not  result  in  an  election 

Colonel,    as  Mr.  Madison  calls  him.  but  as  we  should  say  today.  Alexander 

'  n.HumcnIary  History  ,./  the  Constitution.  Vol.  iii.  p  8 

'  /'  !rf.,  p.  9. 


!1 


An 

Inttmatioaal 

CanUrfK* 


J  I 


■f  i 


•N 


'/ 


.  PI-.  »-9. 


T^ 


150 


THE   I'NITED  STATES  I   A   STIIJY    IN    INTERNATIONAL  ORGANIZATION 


Infttruvii'tna 

to 

Ikltgaiti 


.  ;^ 

K' 

'   'Ic  , 

• 

.  r\, 

' 

K      1 

U-Mll 

V 

,      . 

Hamilton.  nominntcH  Major  Jack<ion,  and  upon  IwUot  the  major  had  five  votes 
to  the  prand^on's  two. 

The  convention  had  a  president  and  a  secretary :  it  did  not  as  yet  have 
memlHrs.  The  credentials  of  those  :ip|Kiinted  by  the  Si.ites  were  presented 
and  read.  \vheren|>on  the  deputies  there  a«scnil>Ied  constituted  the  conference. 
.\s  the  nienilHTs  acted  under  instructions  from  their  States,  in  accordance 
with  the  custom  of  international  assemblies,  it  is  desirable  to  give  some  at- 
tention to  the  form  and  content  of  their  credentials.  First  of  Virginia,  to 
follow  the  order  of  the  .States  accepting  the  recommendation  of  the  Annapr'' 
Convention.  sulise<|iiently  approved  by  the  Congress. 

1  he  piirjHise  is  stated  and  the  delegates  are  instructed  "  to  meet  sue'    i  »>  i   ■ 
ties  as  ni.iy  lie  app<iinted  and  authorized  by  other  States  to  assembU        <  (    ,- 
vent  ion  at  Philadelphia  .  .   .  and  to  join  with  them  in  devising  and 
all  smh  .Mterations  and  farther  Provisions  as  may  I*  necessary 
Fdileral  Constitution  adetpiate  to  the  E.xigencies  of  the  Union  . 
ing  such  an  Act  for  that  purpose  to  the  Unitetl  States  in  Con' 
agreed  to  by  them  and  duly  confirmed  by  the  several  States  will 
vide  for  the  same."  ' 

The  F'ennsylvania  delegates  were  constituted  and  appointed  "  \vii!i  I'ou . .  ^ 
to  meet  such  Deputies  as  may  lie  apiM)inted  and  authorized  by  the  other  -^t  • 
.  .  .  and  to  join  with  them  in  devising,  delilwrating  on,  and  discussinn, 
such  alterations  and  further  Provisions,  as  may  I*  necessary  to  render  the 
fa'deral  Constitution  fully  adequate  to  the  exigencies  of  the  Union."  ' 

The  State  of  North  Carolina  authorizetl  its  deputies  "  to  meet  and  confer 
with  such  I)ei)uties  as  mav  lie  appointed  by  the  other  States  for  similar  pur- 
poses, and  with  them  to  discuss  and  decide  upon  the  most  effectual  means  to 
reni()\e  the  defects  of  our  Firderal  I'nion,  and  to  procure  the  enlarged  Pur- 
poses which  it  was  intended  to  effect,  and  that  they  report  such  an  .Net  to  the 
fiencral  .Nssembly  of  this  State,  as  when  agreed  to  by  them,  will  effectually 
pnn  ide  fur  the  same."  " 

The  delegates  of  New  Hampshire  were  appointed  and  authorize<l  "  to  dis- 
cuss and  decide  upon  the  most  effev.tual  means  to  remedy  the  defects  of  our 
federal  Union  "  * 

The  instructions  to  the  delegates  of  Delaware  contained  a  clause  which 
showed  the  intention  of  that  little  conmionweaith  to  maintain  not  only  the 
indepeiidence  tuit  the  e(|nalitv  which  it  had  gained  for  itself,  in  conjunction 
with  the  other  States,  through  a  conllict  of  seven  ye.-irs.  Thus,  the  deputies 
of  the  sin.die^t  of  the  States  attending  the  Convention, —  fur  Rhode  Island, 

'  l\u-i{iiu-nl,ii\  llislorw  Vol.  i.  p.  28. 
-  /'■!,/,,  |..  2(1. 
■'•  /'  ul  .  I.    .l.v 

*ji:,!   II  in 


n 


THE   lEUEHAL   CONVENTION:    AN    INTEHNAT.D.N AL   CUNKtKEME  151 

as  previously  statf.l.  failcl  to  appear.-  were  app„inte,l  an,l  authori/cl  to 
nuft  the  «lqnitn-s  api>.,inli-.l  aii.I  aiitliori/d  l.v  tlif  ..tli,r  Stati-s.  "  and  to  join 
wttl.  thorn  in  .k-\is,nfj,  .lolilKTatii,;;  „n,  and  .lisciKvjnj;,  sn.h  Alterations  an.I 
further  I'roviM.-ns  as  may  k-  necessary  to  rend.r  the  I'.ederal  Constitution 
adequate  to  the  KxifreiKies  „t  the  rni.m.  .  .  :  S,.  aiuavs  and  Pmvid.d  that 
such  Ahenit.uns  „r  further  l'r..visi,,„s,  .,r  anv  ..f  them,  do  not  e  :ten<l  to  that 
part  of  the  l.fih  Article  of  the  Confederation  of  the  said  States  f.nally  rati- 
hed  on  the  tirst  .lav  of  March,  in  the  Near  One  thunsand  seven  hundrerl  an.I 
e.Rhty  one.  uhuh  .leclares  il,.,t  -In  dctcnnitnnj;  (Juesiions  in  the  L'nitcd 
States  ni  (  on;;res.  Assctnhle.l  each  Stale  shall  have  one  v.>te.'  "  ' 

The  reav.n  i..r  this  action  .,n  l*half  of  Delaware  is  dearlv  stated  in  a  letter 
(late.1  New  (  a.tle,  Jannarv  I/.  \7H7.  from  Ceorge  Uead.  s.V.n  to  In?  head  of 
the  Delaware  .Ule^jation.  to  John  Dickinson,  soon  to  !«  its  Icadinv,-  memkr. 
as  he  alreadv  was  a  ieadinp  citizen  of  the  Cnitcd  States,  from  which  the  foU 
lowing  pass;if;cs  are  .[noted  l.y  w.ay  of  onunent: 

I-indiiiK'  that  VirKini,.  hath  again  t;.ken  the  lead  in  the  pro|KJse.!  conven- 
tion at  n.ila.jelphia  in  M.iy,  as  recommen.lcl  in  our  report   when  at    \n- 

l^\\      ■;  ",  "^"",'"^'''  «"  "'V  *'"  •'»  '"■"•''■"'  ""^•■»^"re  on  the  part  of  our 

State,  that  its  I  eRisiature  siunii.l.  in  the  act  of  appointment,  so  far  restrahl 
he  powers  .,f-the  commissioners,  whom  they  sh.ill  name  on  this  service   as 

that  they  m.-.y  not  exten.l  to  any  alteration  in  that  part  of  the  Cith  .-.rtide'  „f 
he  present  (,  onfe. leration.  .  .  .  that  is,  that  such  clause  shall  he  preserve.l  or 
nsert.d.  for  the  like  puriK>se.  in  any  revision  that  shall  be  made  an.I  aRrecd 

to  in  the  pri)|H)sed  convention.' 

The  reas.)n  for  this  siipKesti.m.  innrinp  to  the  iK-nefit  .)f  the  small  States 
Renerallv  as  well  as  t..  Delaware.  an.I  which  John  Dickinson,  perhaps  ni..re 
than  any  other  man.  ma.le  a  reality,  is  tnus  state.l  l.y  Mr.  Read,  wh.),  curi.nislv 
enough,  in  the  C.mvention  went  .)vcr  to  the  larj.;ir  States: 

riJ,'T'T  •"":,<'''*^'^''^'^*-'  •■"*  "[  •':'•-"'■  "in  .l.pen.l  upon  our  p.escrvim;  such 

S  o',  ■;■  /'T"'''  '<'  •'""  "^  '  ""^'■'■^^  '''"^^''■"''  "^  '"  •'"■  "nerante.l'lands 
m  m.  St  „t  the  larger  .States  as  sncnMcinK  H'c  jti^t  claims  of  tl,e  small.r  an.I 
boun.k.l  .s,..„es  to  .-.  pi.,,„.r,ional  share  therein.  f,.r  the  p,ir,>ose  of  .1  cIk  rg- 
.n«  the  nation.il  .lel.t  mcurre.I  during-  ,|,e  war:  an.l  such  ,'  mv  j.a  ,n  .d' 
n...s.  of  the  larjjer  S.aUs.  that  I  woul.I  tnist  no,|„„,,  ,o  ,heir\.!n,l',r  ^e,;! 
erosily  or  i.leas  of  pul.Iu-  justice  in  InOialf  ..f  this  Slate.  fr.,m  what  h,is  herc- 
t..  ore  hap,.cne.l.  an.l  ulnch.  presume,  hath  nut  escape.l  v.,ur  n,.t,ce  . 
1  crsua.lc.l  I  am.  from  what  I  have  seen  occasjonallv  i.i  the  "pul.li.-  i.rints  n:;  - 
heanl  111  priv;,te  c..nvcr>ati,.ns.  th.it  the  voice  ..f  the  St:u.s  will  he  .  ... 
he  subjects  of  revision,  an.l  in  a  me.tinir  "her.,  there  will  he  so  .j'  .  ..'i 
intereste.l  majority  I  suspect  the  argununt  ..r  orat.,rv  of  the  small?  -,  ■■  ■ 
.omm,.s,„„ers  will  avail  little.  |„  s„.,  h  circumst,.„u-es  I  cnceiv..  :,  .,| 
re  e^e  the  commissioners  ot  the  State  from  .Iis.a<;reeal,le  ars^ument  a  „.  as 
well  „s  prevent  the  downfall  ot   the  State,  u  hid,  would  at  once  beconl-  a 


-'  U.  T.  Kca.l.  I  if,-  ami  i  orrcsfondincc  of  Oivr./i-  Avij,/,  i; 


.J.sS  >), 


% 


■Vt 


152  THE   UNITED  states:   a   STIDY   IN    1NTER>,.\TI0NAL  ORGANIZATION 

cypher  in  the  union,  and  have  no  chance  of  an  accession  of  district,  or  even 
citizens.  ... 

The  clause  in  the  instructions  to  the  Delaware  delegates,  inserted  upon  the 
suggestion  of  Mr.  Read,  was  not  lost  upon  the  delegates  in  the  convention,  as 
appears  from  the  testimony  of  Mr.  Madison,  who  says  in  his  Notes  that  "  on 
reading  the  credentials  of  the  deputies  it  was  noticed  that  those  from  Dela- 
ware were  prohibited  from  changing  the  Article  in  the  Confederation  establish- 
ing an  equality  of  votes  among  the  States."  >  This  was  the  cloud  no  larger 
than  a  man's  hand  which  portended  approaching  storm. 

'1  he  instructions  to  the  delegates  from  Georgia  contained  the  usual  author- 
i^zation,  with,  however,  the  statement  following  the  date  of  the  year  "  of  our 
Sovereignty  and  Independence  the  Eleventh."  »  And  the  instructions  of  New 
\oTk  were  similar,  omitting  the  "  year  of  our  Lord  "  and  substituting  "  this 
Ninth  day  of  May  in  the  Eleventh  Year  of  the  Independence  of  the  said 
State."  * 

The  instructions  from  the  State  of  South  Carolina  did  not  differ  materially 
from  those  of  the  other  States,  except  that  the  delegates  were  to  "  join  with 
such  Deputies  or  Commissioners  (they  being  duly  authorized  and  empowered) 
in  devising  and  discussing  all  such  Alterations,  Clauses,  Articles  and  Pro- 
visions, as  may  Ix;  thought  necessary  to  render  the  Fcederal  Constitution  en- 
tirely ade(|uate  to  the  actual  Situation  and  future  good  Government  of  the 
confederated  States."* 

The  Commonwealth  of  Massachusetts  contented  it.self  in  its  instructions 
with  quoting  the  resolution  of  Congress  and  authorizing  its  representatives 
"  to  meet  such  Delegates  as  may  !«  appointed  by  the  other  or  any  of  the  other 
States  in  the  Union  to  meet  in  Convention  at  Philadelphia  at  the  time  and  for 
the  purposes  aforesaid."  •'> 

Tlie  instructions  to  the  Connecticut  delegates.  William  Samuel  Johnson. 
Roger  .Sherman,  and  Oliver  Ellsworth,  to  whos-  efforts  on  crucial  occasions 
the  (  nnstituti....  IS  largely  <lue.  provide  that  the  th.-ee  deU-gates  t,.  the  conven- 
tion, or  any  one  of  theni  in  case  ,.f  sickness  or  accident,  are  authorized  and  em- 
powered "  to  Represent  this  State  therein,  and  to  confer  with  such  Delegate-^ 
appointed  by  the  .several  States,  for  the  purposes  mentioned  in  the  said  Act 
of  (oMKress  thai  may  l)e  present  and  duly  empowered  to  act  in  said  Con- 
vention, and  to  .ii.scuss  upon  such  .Mterations  and  Provisions  agreeable  to 
the  general  Principles  of  Republican  (Government  as  thev  shall  think  proper 
to  render  the  federal  Constituti.jn  ade(|uate  to  the  exigencies  of  Govern- 
ment and,  the  preservation  of  the  Union."" 


'  fh^cunientarv  History,  Vol.  iii   n  9 
-ll'iii..  Vol.  i.p.  44.  ■    ' 

■'  "-IH..  p    14 
*  Ibid.,  p.  ,W. 


V^irf.  p    II. 

"  lh<d..  ■:   \i. 


THE  FEDEKAL  CONVENTION:   AN    INTEKNATIONAL  CONFERENCE  153 

And  finally,  the  Maryland  delegates  are  instructed  to  join  with  the  other 
delegates  "  in  considering  such  Alterations  and  further  Provisions  as  may 
be  necessary  to  render  the  Foederal  Constitution  adequate  to  the  Exigencies 
of  the  Union  and  in  reporting  such  an  Act  for  that  purpose  to  the  United 
States  in  Congress  Assembled  as  when  agreed  to  by  them,  and  duly  con- 
firmed by  the  several  States  will  efTectuallv  provide  for  the  same,  and  the 
said  Deputies  or  such  of  them  as  shall  attend  the  said  Convention  shall 
have  full  Power  to  represent  this  State  for  th^  Purposes  aforesaid,  and  the 
said  Deputies  are  herel)y  directed  to  report  the  Proceedings  of  the  said  Con- 
vention, and  any  Act  agreed  to  therein,  to  the  next  session  of  the  General 
Assembly  of  this  State."  ■ 

It  IS  apparent  from  these  instructions  that  the  convention  in  Philadel- 
phia was  a  conference  of  the  twelve  States,  continental  if  not  international 
m  the  strict  sense  of  the  word;  that  the  delegates  represented  the  States  in 
attendance  and,  as  delegates,  acted  in  accordance  with  specific  instructions; 
that  the  action  of  the  convention,  in  whatever  form  its  proceedings  might 
be  couched,  was  a  recommendation  to  the  Congress  and  to  the  States ;  and 
that  it  derived  whatever  validity  it  would  possess  by  the  ratification  of  each 
of  the  States  attending  the  conference  or,  as  in  the  case  of  Rhode  Island, 
adhering  to  its  recommendation,  as  is  the  custom  of  States  invited  to  but 
not  actually  participating  in  an  international  gathering.  The  clause  con- 
cerning equality  in  the  instructions  to  the  delegates  of  Delaware  was  a 
warning  to  the  larger  and  a  rallyinff  point  for  the  delegates  of  the  smaller 
States,  when  it  appeared  U>  them  that  the  larger  States  were  intent  on  swal- 
lowing them  up  or  iiHTging  them  in  a  common  union  in  which  the  larger 
States  would  hold  the  whip  hand. 

U'ith  the  reading  of  the  credentials  and  the  seating  of  the  persons  whose 
names  were  contained  in  them,  there  were  present  nieml)ers  appointed  by 
the  States  for  the  convention.  To  act  in  an  expetlitious  and  orderly  manner, 
and  to  accoinnjish  the  purpose  for  which  it  was  called,  it  was  necessary  to 
have  a  system  of  rules  and  procedure.  Therefore  the  next  step  was,  to 
quote  Mr.  Madison's  Xotes,  "  the  appointment  of  a  committee  ...  to  i)rc- 
pare  standing  rules  &  orders."  »  The  Convention  therefore  adjourned  on  „.,„„, 
Friday  the  25th  to  Monday  the  _'Xth.  in  order  to  give  the  committee  time  •'•j"*'*J"» 
to  get  to  work,  and  at  the  meeting  of  the  latter  dale  the  rules  as  reportol 
were  taken  up  and  adoijted.  with  an  amendment  striking  out  the  call  for 
yeas  ami  nays  and  having  them  entered  on  the  minutes  at  the  request  of 
any  member.  This  procedure  would  have  l»een  proper  enough  in  a  par- 
liam.inary  as.sembly,  wliere  each  member  represented  himself,  but  improper 


*  i 


't 


Committee 


'  /'iJ  .  pp.  25-6. 
'Ibid.,  Vol.  ill,  p.  9. 


M 


W' 


154  THE    LNITED  STATES:    A    STIDY    IM    INTERNATIONAL  ORGANIZATION- 

m  an  international  conference,  where  the  tiieml)er  represented  the  State 
The  reasons,  differing  in  form  though  not  in  effect  from  the  one  already 
given,  were  thus  stated  by  Mr.  King  of  Massachusetts,  who  moved  the 
amendment : 

As  the  acts  of  the  Convention  were  not  to  bind  the  Constituents,  it  was 
unnecessary  to  cxhil)it  this  evidence  of  the  votes ;  and  impro|)er  as  changes  of 
opinion  would  lie  frequent  in  the  course  of  the  business  &  would  fill  the  min- 
utes witli  contRidictions. 

To  which  Mr.  Mason  of  Virginia  added: 

That  such  a  record  of  the  opinions  of  members  would  he  an  obstacle  to  a 
chanjre  of  them  on  conviction :  and  in  case  of  its  beinp  hereafter  promulged 
must  furtiish  handles  to  the  adversaries  of  the  Resuh  of  the  Meeting. 

The    st:;n'!i!,;;    rules    and    orders   as   amended    in    this    particular   are   thus 
wortlcc  1 

.•\  House  to  do  business  shall  consist  of  the  Deputies  of  not  less  than  seven 
St.ilcs  ;  and  all  questions  shall  be  decided  by  the  preater  niiml)er  of  these 
which  shall  be  fully  represented ;  but  a  less  number  than  seven  may  adjourn 
from  day  to  day. 

Immediately  after  the  President  shall  have  taken  the  chair,  and  the  mem- 
bers their  seats,  the  minutes  of  the  preceding  day  shall  be  read  by  the  Secre- 
tary. 

Fvery  member,  rising  to  speak,  shall  address  the  President :  and  whilst  he 
shall  be  speaking,  none  shall  pass  between  tliem,  or  hold  discourse  with  an- 
other, or  rc.id  a  Iiook,  pamphlet  or  paper,  printed  or  manuscript  —  and  of  two 
members  rising  at  the  same  time,  the  President  shall  name  him  v  ho  shall  be 
first  heard. 

.\  minil)er  shall  not  speak  oftener  than  twice,  without  special  leave,  upon 
the  same  question;  and  not  the  second  time,  before  everv  other,  who  had  been 
silent,  shall  have  been  heard,  if  he  choose  to  speak  upoii  the  subject. 

.\  motion  made  and  seconded,  shall  Ite  repeated,  and  if  written,  as  it  shall 
be  when  any  member  shall  so  re(|uire,  read  aloud  bv  the  Secretary,  before  it 
shall  l)c  debated ;  and  may  be  withdrawn  at  any  lime,  before  the  vote  u])on  it 
shall  li.tve  beiMi  declared 

Order-  of  the  d.iy  shall  be  rerui  next  after  the  minute^,  and  either  dis- 
cussed or  postponed,  before  any  other  busine--   shall  be  introduced. 

When  ,1  debate  shall  arise  uiKjn  a  questioi,,  no  motion,  other  than  to  atnend 
the  question,  to  eommit  it.  or  to  postpone  the  debate  sliall  be  received 

.■\  question  which  is  com])!icaled.  shall,  at  the  nqiiest  of  anv  inemlHr,  be 
divided,  and  put  separately  on  the  propoi  ilions  of  whicii  it  is  compotnuled. 

The  determination  of  a  ((iiestion,  altho'  fullv  debatni.  shall  be  postponed, 
if  the  depiities  of  any  State  desire  it  until  the  n.'xt  dav 

.\  writing  which  cont.iins  any  matter  broiit;bt  on  to  he  eonsiderc'  -hall 
be  read  ()nc<  thri)U(;hoiil  for  information,  then  bv  iiiir;ij;ra|  i-  he  leiiated, 
and  .lu'ain.  with  tlie  .unendments.  if  .mv.  made  on  the  serotnl  re.i.hnij:  and  af- 
teru.irrls  the  <|uestion  shall  be  put  oti  the  whole,  amended,  (ji  .pproved  in 
its  orifjin.Tl  form,  .i-  ihi'  (■;is.-  v|i.,ll  he. 

Committees  shall  be  appouited  by  ballot:  ,ind  the  im-i"!  ,r    who  have  the 


THE   FEDERAL  CONVENTION  : 


AN    JNTEKNATIONAL    CONFERENCE 


155 


greatest  number  of  ballots,  altho'  not  a  majority  of  the  votes  prpsent,  shall  be 


the  < 
the 


—  Wh 


nieniiter  st.inrting 
shall  be  preferred 


en  two  ur  more  nicnibi  

first  on  the  list  in  the  order  of  taking  down  th.-  ballots. 

A  menibc.-  may  be  called  to  order  bv  any  other  member,  as  well  as  by  the 
I  resident ;  and  may  b.  illou ed  to  explain  bis  coiidmt  or  expre'-^ions  supposed 
tn  l,e  reprehensible.  And  all  .|uesti()ns  (;f  order  shall  Ik-  decided  by  the  Presi- 
dent without  .ippe:il  or  debate. 

I'pon  a  .iiR>tiim  to  adjourn  for  the  <la\ .  which  may  be  made  at  anv  time 
It  It  1h-  .... Hided,  the  (|ue>tioii  shall  be  put  u  about  a  debate. 

Uheii  the  llouH'  shall  adjourn,  every  member  shall  stand  in  his  place, 
until  the  IVcsk'  lit  i>a>>  !iim.'  ^ 

It  .Hciirrcd  to  Mr.  Pierce  P.iuler.  of  South  (  arnlina.  that  k  would  be 
advi-.ibie  to  pn.\  wie  again^^t  "  interruption  of  business  by  absence  of  memljers. 
and  ,ii:ain-t  licentious  piiblicatmiw  of  their  i)roceedinRS."  To  this  motion 
Mr.  Rieh.ird  P. 'I.-,  -Spaight,  of  Xortb  C.-.'-olina,  moved  a  provision  "that 
on  the  ..tie  hand  the  Hoikc  mis;ht  tiot  lie  prerhtded  by  a  vote  upon  aiu  .[ucs- 
tion.  from  revi-inj;  tlie  subiect  matter  of  it.  W  ben  thev  see  caiiM-.  nor.  on 
the  other  hand,  be  led  i,„.  hi-^tih  to  rescind  a  decision,  which  was  the  re- 
sult of  mature  discussion."-'  The^e  tw.>  motions  were  referred  t..  the  >  .in- 
niittee  on  st.iii.liti..  rn!e<.  wlrch.  by  its  ch.iirman.  rcp.irted  the  next  day  the 
:.<lIowi;ij,'  ad.liiioiial  rules,  winch  were  adopted  and  thus  completed  the  -land- 
ing rules  anil  orders; 


That  no  membei  bo  .ib-ent  fn.m  the  House,  so  as  to  interrupt  the  repre- 
sentation of  the  State,  uithoiit  leave. 

That  I  onimit'ees  do  not  sit  whilst  tiie  Hou-e  shall  be  or  otiijht  to  be, 
sitting. 

I  hat  no  eopy  l)e  taken  of  any  entry  on  the  journ.il  during  the  -ittini'  of 
the  I  l.)use  without  leave  of  the  Iloit-e. 

Ih.it  m.-mb.-fv  onl\-  be  permitted  to  insjiect  the  journal 

I  bat  nolhititr  spoken  m  the  1  lou-e  be  printed,  or  otlierwlse  pubiisjiod  or 
comimmicated  without  leave 

i'lnt  :\  motion  to  reconsider  a  matter  which  ha.l  been  denrmined  I,v  a 
mriiontv.  m.ay  b,  ma.Ie.  with  leave  unannnously  driven,  on  the  s.iiuv  d.iy  on 
which  the  vote  passed;  but  otherwise  not  without  one  dav's  previous'  uo- 
tici  in  uliich  In-t  cn-e.  if  the  Mouse  at,'ree  to  the  recon'.sidenmon,  >onie 
futsireday  shall  be  .i^Mgne.l  fur  that  puqirse.'' 

broni  an  inspection  of  the  credentials  ,.f  the  nn-tubers  and  the  i)rocediire 
adopted  lor  its  oiiducl  it  is  evident  that  the  I'edcral  Convention  was  a  c..n- 
lereiK.  in  the  interiuitional  sense.  It  is  clear  that  the  States  were  repre- 
sented as  States.  ;m<i  they  voted  as  States;  that  a  nieth..d  of  procedure  was 
devised  calculated  to  put  the  project  in  its  entiretv  ard  in  its  .several  po'- 
before  the  c. .mention,  to  ditYuse  understaiuhiig  of  it  before  debate,  to  furiiisli 


•  .''  ■.  iiiit.nfa:  \   Hisi, 
-•  /^■,.' .  1.    1  ! 
»/;.f</..  p,,,  U  15. 


r.V.  Vol.  iii.  [ip.  10-lJ. 


.T.on.ll 

t  tile 
i.t.L-n 


il 

a 
i 

If 

I. 


156 


THE    INITED  states:    A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


■**? 


Oj>fnmK 
of  tl.e 

fotivrntion 


an  opportunity  for  discussion  upon  each  of  its  parts  as  well  as  upon  the 
project  as  it  should  appear  after  debate  and  amendment  for  the  approval 
of  the  convention:  that  committees  should  not  be  appointed  by  the  presi- 
dent, even  although  that  president  was  the  impartial  Washington,  but  their 
memliersliip  determined  by  lailot,  which  excluded  favoritism  on  the  part  of  the 
chair  and  securer!  the  judgment  of  the  States  upon  membership  without  dis- 
closing the  vote  of  the  individual  delegates:  that  members  could  not  absent 
themselves  without  leave  of  the  conference,  in  order  that  business  should 
not  l)e  interruptc<l  by  their  absence:  that,  to  give  all  members  an  oppor- 
tunity to  keep  in  touch  with  the  proceedings,  no  committee  should  sit  while 
the  convention  itself  was  in  .session:  and  that,  for  their  letter  information, 
tliey  might  indeed  inspect  the  Journal,  hut,  to  secure  the  ^crecv  necessary 
to  the  suries>  of  iIr.  conference,  only  the  members  might  do  so.  and  nothing 
spoken  in  debate  should  Ik-  printed  or  published  or  communicated  without 
leave. 

As  these  standing  niKs  and  ..nlers  enabled  a  free  and  a  fair  exchange 
of  views  in  the  conference  which  drafted  the  agreement  of  the  States, 
which  IS  today  the  oldest  existing  written  in.strument  of  government,  if 
the  Constitution  of  Massachusetts  1*  excluded,  they  are  worthy  of  consid- 
eration for  an  international  conference  which  shall  draft  and  recommend 
projects  to  the  States  forming  the  society  of  nations,  when  the  nations  meet 
rigain  in  conference  and  may  Ix"  inclined  to  provide  the  Society  with  some 
tortn  of  organization.  It  is  to  l)e  iMjrnc  in  mind  that  each  State  is  the 
eiiual  in  law,  though  not  necessarilv  in  influence,  ot  all  others  represented 
in  conference.  I'.ecause  of  this,  the  rule  of  unanimity  may  Ik;  thought  to  he 
re<|uisite,  yet  inasmuch  as,  tlien  as  now,  the  State  is  only  Ixnind  by  it-  own 
consent,  and  as  the  acts  of  the  convention  or  conference  do  not  of  them- 
selves hmrl  the  constituents,  all  qiiestions  may,  in  .some  f  nure  conference, 
as  in  the  I'ederal  (  onvcntion  at  Philadelphia,  "lie  decided  hy  the  greater 
ntimlier  of  tho-e  which  shall  he  fii'lv  represented." 

Immediately  after  the  additions  to  the  standing  rules  and  the  rejection 
of  'he  motion  that  a  committee  he  appointed  to  superintend  the  minutes, 
which  would  h.-ivc  lieen  wise  in  vk-w  of  the  careless  manner  in  which  they 
«er(  kej)t  hy  the  secretary,  Mr.  Randolph,  to  (luote  Mr  Madison's  .Votes, 
■  then  opened  the  main  Inisine-s,"  and  after  expressing  regret,  as  is  the  wont 
of  piihlii  .speakers,  that  the  duty  of  oi)enirig  proceedings  should  have  fallen 
to  one  without  greater  experience, —  he  had  been  attorney  general  and  was 
then  .governor  of  the  State  of  X'irginia,  and  destined  to  he  attorney  general 
and  secret.-iry  of  st,>te  ..f  the  I'nited  States,— he  adverted  to  the  fact  that 
the  C(.iivcntion,  ha\ing  originatetl  from  V'irginia,  some  proiMJsition  would 
he  expected  to  emanate  from  the  delegation  of  that  State,  and  that  the  dutv 


THE   FEDERAL  CONVENTION  :   AN   INTERNATIONAL   CONFERENCE  157 

of  laying  the  proposition  of  his  colleagues  before  the  convention  and  of 
explaining  its  terms  ha«l  devolved  upon  him.  In  the  course  of  what  may 
be  considered  his  intfcKJuction.  he  observed  that,  in  revising  the  federal 
system,  mquiry  should  l)e  made  into  the  pro,>erties  which  such  a  government 
ought  to  possess,  the  defects  of  the  Confederation,  the  danger  of  the  situa- 
hr"sa'id  ^°""''  themselves,  and  the  remedy.     On  the  first  point 

The  character  of  such  a  government  ought  to  secure  1  airiin>it  fnro;»„ 
invasion  .-2.  agauist  dissensions  between  members  ofX  Unio.f  or  secS 
m  particular  States:  J.  to  procure  to  the  several  States  var"ou  WessinS  of 
which  an  isolated  situation  v  as  incapable:  4.  to  be  able  to  defend  it;,.^f 
against  encroachment :  &  5.  to  be  paramount  to  the  state  const^tulions.^ 

The  defects  of  the  Confederation  he  attributed  somewhat  condescend- 
niR  y  to  the  then  infancy  of  the  science,  of  constitutions.  &  of  confederacies  " 
and  to  the  further  fact  that  the  framers  of  the  Articles  ha.l  not  then  the 
l^enefit  of  experietice  but  he  graciously  concluded  that  perhaps  nothing  In^tter 
could  be  obtained  from  the  jealousy  of  the  States  with  regard  to  their 
sovereignty. 

Enumerating  what  he  considered  the  defects  of  the  Articles,  he  said : 

der-lhe'con&rS-Miyar."n''"H^    r    "  "'^''^'^  ""^  "°'  '''"•-"-W'^  """ 
—reial  regulSs  o^oti^- ^tC^S;:^;;;—:^  ^tuL^^ 

cro.ihm:nts'L'r,'h"'s,rr"""'"  ^°"'''  "''^  "^•^'^"^  '-'f  ^g--  "-•  - 

wa^i,:*;;:!.;;  :nrL:;:i7"^'""""'  '"  ''''  "^'^  institutions,  ratitiea  as  it 
After  referring  to  the  danger  of  the  situation  and  the  prospect  of  anardiv. 

emedv      th    i  r   '^  f'^uT"^"'^-^-  ^^  «hen  proceeded  to  point  out  ,b 
remedy,      the  I.as,s  o,  which  he  said  must  be  the  republican  principle.- 

It  has  l*en  tliouf^ht  a.l   -.aMe  to  state  somewhat   fullv  Mr.   Uaiulolnh's 
wews  on  the  brst  and  secc.„,l  points  of  his  address,  in  order  that  the  re  , le 


4  i\ 

5  * 


Pniumenfary  IIislor\,  Vol. 


■■  lh,d 


pp.  15-16 


iii.  f    K. 


til 


158 


nit:  iNiTED  states:  a  stidy  in  interxational  organization 


Mr    Kindulph'i 
1  [fircn 
Ixvv.liiltoii* 


^i 


may.  as  far  as  possible.  Ixr  in  the  position  of  his  atulitors.  and  \k  l>etter  ah!.- 
to  appreciate  the  remedy  which.  Mr.  Randolph  was  careful  to  say.  should 
I'c  ot  a  rcpul.lican  nature,  an.i  which  he  lai.l  Ix-fore  the  conveniion  with 
appropriate  explanations,  uhich  .m  fortunately  have  not  In^en  preserved 
The  \  ,rR.n>an  or  the  Randolph  plan,  as  it  is  indiscriminately  called  con- 
sisted o  h.tecn  resolutions.  They  «ere  the  basis  of  discussion  from  the 
day  of  their  presentation,  and  arc  to  k-  considered  as  emlK.dving  the  gener.d 
_  I.ru,c,,,k.s  winch  expanded,  systematize,!  in  the  form  of  articles,  form  the 
more  perfect  Union  of  the  United  States  and  their  constitution. 

The  tirst  proposes  that  the  Articles  of  lonfe.leration  \k  corrected  and  en- 
larpe.!  ,n  the  interest  of  "  common  defense,  security  of  lil^rtv.  an.l  general 
welfare." 

The  second,  that  .suffrage  in  the  Xa.ion.al  Legislature  I*  proportioned  "  m 
the  nuotas  ot  eontril.ution.  or  to  the  number  of  free  inhabitants  " 
Ihe  third,  that  the  National  Legislature  consist  of  two  branches 
The  fourth,  that  "  the  memlK-rs  of  the  first  branch  of  the  National 
Legislature  be  elected  by  the  people  of  the  .several  .S,a,es  for  a  term  ,.f 
years,  that  they  be  of  a  certain  age,  that  they  receive  compensation  for  their 
•services,  and  that  they  do  not  hold  any  office  under  the  State  or  the  Tniic  i 
.Mates  incomi>atible  with  their  position. 

The  fifth,  th.-it  '•  the  ,mtu\K-T>  of  the  secon.l  branch  of  the  National  I  egi^- 
lature  be  elected  by  the  first  brand,  of  the  legislature  fr.,m  a  1,,,  of  nominees 
"t  the  .State  legislatures,  to  hol.l  ortice  under  approxi.nalclv  the  same  condi- 
tions as  those  of  the  first  branch. 

The  sixth,  that  each  brand,  ,,rigina!e  legislation,  that  the  Nation.! 
Legislature  enjov  the  rights  v.sted  in  Congress  bv  the  ronfcderatiun  an  I 
Slid,  other  rights  f.,r  .l„d,  the  separate  States  are  ••incompetent.-  ,\r  in 
which  the  harmony  of  ili..  r„i,,,l  States  is  internii.ted  l,v  State  le-isln,,,-,.,  ■ 
th.u  It  possess  ,„  ,ul,li,„,„  tlH-  n.^ht  ••  to  negati^e  all  laws  p,-,ssc,l  bv  the  several 
States  c,,„,ra^  en, 11,'  in  the  opinion  of  the  Nati,,iial  Legislature  liie  articles  ,,t 
ln,..n:  .n„l  „,  .-.al!  ,-,,r,b  the  force  ^f  the  ( -n,.,,  ag-'.  ,mv  member  of  the 
I  ni.^n  t.a.ling  t.,  ivM]]]  „s  ,l„,v  „„,ler  the  articles  there..:  - 

ilH-  sc-u-iiil,.  that  a  Xatmnal  l-xecmivc.  ineligible  for  a  second  te-,n 
.^I'os.n  l,v  the  \a„.„al  i..,isla,„re  f„r  ,i  tern,  ,„  y.ars.  he  nistittite.l,  to  n- 
cene  a  s;,h.ry  „, .,  miImccI  in  iiuTease  .r  .liminut.ou  for  his  services,  to  execute 
•  -^-  nalH.„al  laus  an,!  f,  e,n,.y  "the  Kxecntive  rights  vested  in  Congress  bv 
tlie  I  "iiledrratioii.  '  ' 

;  ■''"':■"■^ '''■'"  ^''''''"^■'''■''';^^'-i''"''f'- the  Ivuvutive  and  a  o.nenlcMt 
'■""^'-r  ,„    tlic   Xa„,,„:,l    l.,lK.,.n  ■■   1,.  .reate.l,    u  „h   authoritv   ,.,   esan,,;,.. 

••'V'"^  '"    ''"   "'■'■"""'  ""'  '  '   '■■'^•''   ^'^"^   '.'■^■^lature  and   to   reject   then, 
utuler  cert.ain  c. )ntini,'eii.ns. 


m^m 


THE   FEDERAL  CONVENTION:   AN    INTERNATIONAL   CONFERENCE  159 

The  ninth,  that  a  National  Judiciary,  consisting  or  one  or  more  supreme 
and  of  .nferjor  tribunals.  Inr  chosen  by  the  National  Legislature,  composed 
of  judges  holdmg  office  during  good  behavior,  receiving  a  salary  not  subject 
to  mcrease  or  d.mmution  during  their  term  of  office;  that  the  inferior 
tr-buna  s  dt^.de  m  first  instance  and  the  supreme  tribimal  in  dernier  ressort 
nat  onal  and  mtemat.onal  questions,  such  as  piracies  and  felonies  committed 
on  the  high  seas  captures  made  from  an  enemy,  cases  affecting  foreigners 
or  c.,.zens  of  other  States,  the  National  revenue,  impeachment  of  National 
hrrr^onv''  ''     ''""''*""'  ''^''"^  "''''>'  '"^"'^'^  '^e  national  peace  and 

The  tenth    that  new  States  In;  admitted  to  the  Union  formed  of  terri- 

^^te  r„".t"V  !■'"";''  ''^.  ^  ^'"''^'^  ^*^^"-  ^^•'"'°"'  '•«=n»i""K  -  unanimous 
vote  in  the  National  Legislature. 

The  eleventh,  that  a  Republican  government  and  the  territorv  belonging 
to  each  State  l,e  guaranteed  by  the  l-nited  States.  "  except  in  the'instance  of 
a  voluntary  lunction  of  Government  &  territory." 

The  tueiitl,,  that  provision  be  made  to  continue  the  e.xisting  govern- 
ment an,l  ,.s  obligations  umil  •' a  given  day  after  the  reform  of  the  articles 
ot  Lnion. 

The  thirteenth,  that  provision  I,e  made  for  amendment  of  "the  Articles 
of  Lmon      without  requiring  the  assent  of  the  National  Ugislature 

The  fourteenth,  that  the  officers  of  the  several  States  Ik.  i«und  l.v  oath 
to  support     the  articles  of  Uni,,,,.' 

The  tmee.nh.  and  last,  that  the  anu-ndments  ofTere.l  to  the  Confedera- 
tion  by  the  convention  be.  with  the  ap,.n,ba„on  of  Congress,  sulm.uted  to 
conventions  u.thm  the  several  S.ato  .lusc,  by  the  people  "to  consider  & 
decide  thereon      ' 

It  will  1..  observed  ,ha,  Mr.  Raiulolpb  .  resolutions  fall  into  four  groups  th. 
based  up,^  the  theory  and  .he  pracce  ...  the  separation  of  power!,,,  1^  ^^l. 
o.ii  d.  wuh  more  or  less  completeness,  „-  everv  one  o,"  the  constitutions  of 
the  hirteen  Males  c-c.n.s.uuting  the  Confederation;  that,  leaving  out  the  first 
resolution  to  the  effect  that  the  Articles  ..  Confederation  shon'd  U-  cor- 
rected and  enlarged  in  order  to  secure  -the  common  defence,  secun.v  ,. 
iberty.  and  general  welfare.-  the  second  to  the  si.xth.  inchi.,ve,  .leal  uuh  the 
legislative  branch  o.  government,  the  seventh  and  eighth  with  the  ex.cmivc 
depanineiu.  the  iniuli  with  the  judKiary  ,  as  did  the  inmh  ,m  the    \„k1cs  .  ■ 

NMthin  the  .scope  o.  the  proj.oscd  govenin.eni  l„„  „f  ,-,  .,„,ra!  nature  in  the 
sense  that  no  one  of   them   Wongtd  exclusively  t,    any  one   of  the  three 
'  JK'cufinilaiy  History,  Vol.  iii.  pp.  17-20. 


I! 


160 


THE   UNITED  states:   A   STl'DY   IN    INTERNATIONAL  ORGANIZATION 


■*»|i, 


Oh,iTiRf  nf 
Purpour 


divided"  '"*°  ""^^^^  '^'  government  of  the  more  perfect  Union  was  to  be 

,nJ!r'.Vl"  ''^*  "'  "1"  •'^"*''"  °^  Confederation  l*fore  our  eyes,  it  would 
appear  that,  grafting  these  resolutions  upon  the  Articles  was  very  like  y<.ur- 
mg  new  w.ne  into  old  bottles,  with  the  result  to  \^  expected  of  .ilch  a 
process.     I-or  the  strongest  advocate  of  the  Articles  of  Confederation  would 
not  suggest  that  they  provided  for  the  threefold  division  of  govc-nment   in 
the  sense  in  which  each  of  the  States  had  done.     The  Congress  unde^  'the 
Confederation  did  indeed  possess  the  power  of  recommending',  rather  than 
of  legislating,  and  the  right,  if  not  the  power,  in  all  cases  of  executing  recom" 
men.lat.ons  approved  by  the  States,  or  its  own  acts  in  so  far  as  thel^at^ 
did  not  mterpose.     If  the  Congress  is  to  be  considered  as  an  executive    it 
was  a  numerous  IkhIv.  not  a  single  person.     The  judicial  power,  in  so  far 
as  ,t  was  cont..i„ed  in  the  Articles,  consisted  of  the  right  to  create  a  court 
for  the  trial  of  piracies  and  felonies  committed  on  the  high  seas    which 
was  never  created  of  a  right  to  create  a  court  of  appeals  in  cases  of  capture, 
which  was  indeed  created,   but  whose  decisions  depended  upon  the  mere 
pleasure  of  the  States  for  their  enforcement:  and  finallv.  a  power  to  call 
into  being  temporary  tribunals,  courts  or  commissions   for  the  .settlement 
of  disputes  and  diflferences  between  two  or  more  States  concerning  boundarv 
jurisdiction  or  any  other  matter  of  a  justiciable  nature 

It  is  true  that  the  States  under  the  Articles  of  Confederation  renounced 
the  exercise  of  certain  rights,  such  as  negotiating  with  foreign  countries  or 
concluding  treaties  of  alliance  with  themselves,  or  going  to  war  either  with 
fomsn  countries  or  with  one  another,  but  there  was  apparently  no  power 
lodged  m  the  Congress  to  make  any  of  these  rights  efTective      ' 

The  Convention  was  called  by  the  Congress  for  the  sole  and  exclusive 
purpose  of  revising  the  Articles  of  Confederation  and  of  rendering  them 
more  effectne.     A  strict  and  literal  construction  of  this  mandate  would  have 
suggeMcd.  .1  ,t  ,hd  not  re.,uire.  the  rea.ling  of  the  Articles  as  a  whole    the 
dLscussion  ot  each  „ne  of  them  in  detail  an.l  its  adoption  as- amended,  and  a 
vote  upon  the  complete.l  instrument  as  a  whole  as  thus  correcte.l  and  en- 
large,!.     This  was  not  the  nu-thod  proposed  by  the  Virginian  plan.  an<l  a 
proposition  to  make  the  Artidcs  of  Confederation  the  basis  of  .liscussion 
was  rejected  !.   the  Convention,  which  u.sely  preferre.l.  in  acconlance  with 
the  procc.lnn   .  ,.;on,r,^^  in  nn.rnat.onal  conferences,  to  invite  the  presenta- 
tion of  proKvt.  ,o  make  one  or  m,.rc  of  ,hem  the  basis  of  discussion,  to 
reter.   ,n  or,g:,nal  or  .Hmendc.l    lorn,,   those  wbi.h  met   with  .ipproval  to  a 
drattmg  committee,   called   by   the    l.V.leral   Convent,,,,,   the   Committee   of 
Det.u i   to  l)e  inserted  in  their  proper  pl.u-es  in  the  treatx  or  convention  under 
ame.Klm.nt.  or  to  form  a  separate  treatv  or  cnvcntio,,  ,f  th.  original  one 


THE   PEDBIAL   CONVENTION  :   AN   INTBBNATIONAL  CONFEIENCE  161 

was  displaced  or  if  one  did  not  exist.  The  result  was  also  in  accord  with 
the  practice  of  international  conferences,  from  which,  as  a  man  well  versed 
m  then- aflfairs  has  wittily  said,  we  may  expect  anything  except  the  procedure 
outlmed  in  the  program.  f       ^u  .; 

It  is  frequently  stated  in  works  of  authority  that  the  convention  should 
have  revised  the  Articles  as  its  call  was  limited  t,.  their  revision,  and  that 
failing  to  do  so  their  proceedings  were  revolutionary.  The  charge  was  made 
on  more  than  one  occasion  in  the  convention  itself,  but  the  answer  then 
advanced  was  conclusive,  at  least  it  appeared  so  to  the  members;  that  it  was 
m       •    '  •^°"^''="''?"  ""  ''"'""it  »  draft  of  a  more  perfect  Union  which 

L^ll  n    .r"""!  ''^'  ''■'"'"'"'  *°  '^'''  '^'  P"^P«^"  ^hich  lay  behind  the 
can  of  the  conference,  ina.smuch  as  the  labor  of  their  hands  would  only  be 
a  recommendation  to  the  Congress,  and  that  in  any  event  the  form  of  gov- 
ernment. If  approved  by  the  Congress,  would  be  submitted  to  the  States 
or  their  approval  or  rejection  and  would  derive  all  its  power  and  effect 
rorn  the  approval  of  the  States.     Or.  as  more  elegantly  expressed  bv  the 
Illustrious   Washington,    in   speaking  of  the   conference,   that   they   should 
raise  a  stanoard  to  which  the  wise  and  the  honest  can  repair  " 

leei sLturi  "T  "  r"'f  '^"'  ^^'-  ^'"''^'P'''^  '■^^'"^'°"«  ^P-l*  °f  -  national 
quence  ..often  drawn  that  the  framers  intended  to  and  actually  did  create 

a  Lmon  of  the  States,  the  government  whereof  was  vested  with  the  exer- 
cise of  certain  s<nereign  powers,  expressly  enumerated  in  the  Constitution 

°he  StZ  m  "7"-?.^>V:".P""^'°"  f--  '^^  ^'^=»"t  of  specific  powers  which 
he  States  made  to  the  Lmon.  renouncing  at  the  same  time,  in  l^half  of  the 
Lmon.  certain  sovereign  powers  expressly  enumerated  or  arising  from  neces- 
sary .mphcation.  In  the  course  of  the  proceedings,  to  be  specific  on  June 
20th.  the  term  national  m  its  relation  to  the  legislature  was  stricken  upon 
the  mo  , on  o  Oliver  Ellsworth,  of  Connecticut,  substituting  "  governmVnt 
of  the  Lnited  States  for  "  national  legislature."  «  But  it  is  believed  that 
this  amendment  is  immaterial,  inasmuch  as  the  term  "  national  "  was  used  as 
opposed  to  the  fe<leral  form  of  government  then  existing,  and  that,  in  the 
language  of  the  iKr.od.  the  term  -consolidated-  was  employed  where  we 
of  today  would  pro,»erly  use  national.  The  framers  of  the  Constitution 
were  more  intent  upon  things  than  words. 

Ue  do  not.  however,  need  to  resort  to  speculation,   inasmuch  as   Mr 

Madison  has  himself  explained  the  sense  in  which  the  term  "national  "  was 

to  be  understood  in  the  Virginian  resolutions.     Thus,  in  a  letter  dated  March 

^5.   18_6,  to  Mr.  Andrew  Stevenson,  a  fellow  Virginian,  meml^er  of  Con- 

>  Robert  Yat«.  Sfcr,,  Proceedings  and  Debates  of  the  Convention.  1821,  p.  142. 


AUnioo 
of  Free 
Stales 


I   t\ 


/ 


ii 


/ 


m 


162 


Th»  WorJ 

"  Naluina)  '* 


Mti 


THE   INITED  STATES:   A   STIDY   IN    mTEBNATIONAL  OtCANIZATION 


grcss.  later  Speaker  of  that  Ixxly  and  Minister  to  England.  Mr.  Madison 
said: 

(alien,  a.  others  have  done,  b)  su|,,K,.Hn,g  that  the  term.  natw„al  afmlicd  to 
he  contemplated  (-overnment.  in  the  early  stage  of  the  Convention    particu" 

ZZu\  'i  »":T"""""'  "'  F  '^^"^"'r'''  ^-^^  ^-ixivalent  to  «„  iS  or 
consohdated.  I  In.  was  not  the  case.  tL-  tern,  was  used,  not  in  cont  .^dis- 
^nct.on  o  a  hnnled  hut  to  a  federal  ( iovernnient.  As  the  latter  ope7atcd 
w  hm  the  extent  of  ,ts  authority  thro'  re.,«isi,ions  on  the  Confed^r.3 
States  and  rested  on  the  sanction  of  State  Ugislatures.  the  ( iovernnunt  to 
take  ,ts  place,  was  t..  o,Hrate  within  the  extent  of  its  iK,wers  directly  &cocr" 

Matts.     And  there  [mng  no  technical  or  appropriate  denominatio^i  applicable 

..he  new  ..nd  nmque  System,  the  term  national  was  used,  with  a  Sdence 

hit  It  W..UI.I  not  be  t.-.krn  in  a  wrong  si-nse.  especially  as  a  right  one  could 

he^TcUes^'S"'  '•    ""1, -,"«--">•  in.plied  i.y  sor^e  of  the' pro^sS 

n  T        I    u  1 "  "."  "'"'  '""  "'""  »*••'>"  '^^"  '"■  "T-ee  members  of  the 

I  ml  -ecH  iv.  7  "'^r  ♦'"«^«^^"""y  than  pnutically.  were  in  favor  of  an  in' 

limited  ( .ov<.  founde,!  on  a  c.n.olulation  of  the  State.;  and  th.it  neither  .m" 

RaiuHph.  nor  anv  one  of  his  colleagues  was  of  the  numkr.     I  lis  pro,«s,tions 

were  the  result  of  a  meeting,  of  the  whole  Deputation,  and  concfrreTo    ac- 

Jurl         T  ""?'"'"""sl.v.  merely  as  a  general  intro.l«ction  of  the  business- 

such  as  might  be  expected  from  the  part  \'irginia  ha.1  in  bringing  aSX' 

(  onvention  and  as  mu:ht  t,e  detaile.l.  and  defined  in  the  progress  o1  the  wort! 

The  Journal  shews  that  this  was  done.'  "  "«  me  wonc 

.\Rain  he  wrote,  in  a  letter  dated  December  26,  1826,  addressed  to  Thomas 
Cooper : 

terM^,^"te,S"'i!''w^"nT  "  ^'^tional  "  as  comradistingtiished  from  the 
leriii  iKjeral,  it  was  not  meant  to  express  the  .xteni  of  oower  hnr  fh,^ 
mo</..  oi  ,/.  otera„on.  which  wa>  to  be  not  like  the  powc  of  th^old  Conf  ed- 
cr..„on  operating  on  .S7.,/.,,  but  like  that  of  ordi.urv  < -overnm 'nN  o,>era  n^ 
on  in.hviduals;  &  the  substitution  of  "  United  States"  for  "Ta, W"  no  cM 
."  .he  luumal,  was  lu.t  .Icsigiud  to  change  the  meaning  of  th    l.at  e     InU    o 

crs\:c^^;!j;'::;^^;S;'S.^d')rd;,i;;^?'  '"^  '^""^'*'""°"  '^^^^-^  >^^  p- 

And  in  a  letter  written  in  l^ecemlwr,  1831,  to  Mr.  X.  P  Trist   Mr  Madi 
son  recurred  to  this  .juestion  and  thus  elalxjrated  his  views: 

f».,lT,i^V)'"''V™,"'T:'-"  "J  l"""^"'''i"Bs  ""  tliose  Resolutions  ought  to  have  satis 


>  n  .umffilary  History,  Vol.  v,  pp 
'  Jb,J.,  p.  339.  " 


.132-3. 


1 


THE   rtOERAL   CONVENTION:   AN    INTMNATIONAL  C<..S,ERKSCE 


163 


m^t^h*  progms  of  the  work.  d.,tmgu..hmB  it  from  a  plenary  &  Con«)lidated 

It  mijffit  to  have  oicurred  that  the  Gov'  nf  tl...  i  •   c  k  •  .      « 

compound,  had  no  technical  terms  ,  r  nl  ?^  •     ^"'"f^  =•  """''"">'  *  » 

k:  r  •'^  ^  -^ '"  --e::5::n;cri;rr  SntS  -  r  ti^i^S 
^ce.a^.duced  f  J  S^s.- ;;-rof^x  t;^^'-:;";;;e'!;i:a;;i- 

ten  In   r""""?"'  ''  "^'^'"-  '"*^'   ^"^  '^'  "•^^""'l  «i'"«^  on  May  29th  at 
en  o  clock.-,  at  least  it  had  adj.,urne,l  to  that  h.,«r.     Some  time  las  taken 

a,i  ress.  openmp  ,he  ma.n  hnsmess."  must  have  heen  an  elaln^rate  one 
and  h.s  comments  upon  his  fifteen  resolutions  "which  he  explaine.  one  by 
-e.  must  haye  consumed  much  time;  and  the  House  must  h.";!  i  n  ^eaiy 
to  adjourn  at  the  conclusion  of  his  remarks,  for  immediate!^    hereaf       it 

resohe  tself  mto  a  Comm.ttce  of  the  ^vhoIe  Flouse  to  consider  of  the  state 
of  the  Amer.can  Un,on-and  that  the  propositions  moye.l  by  M'  Ra„VXh 
be  referred  to  the  said  Committee." »     I,  appears,  howeyer.'from  Gentry 

rM^rfthe  H^e't:  f'^Tr'  '''"^^-  ''^'  " '''■  ^»^-:es'pinC  .., 
micibeforc  the  House  the  draft  of  a  federal  Goyernment  Nyhich  he  had  ore    """•' 
.  ared  to  be  agreed  upon  between  the  free  and  independent  States  of  \merica  " 

wh^tChis'o;  I'^rr^  '''  '""^-  ''-  ^^"^^-^  comentei  h^I  ,f 
u.th  lauuR  h.s  plan  Ix^fore  the  convention,  accompanying  it  with  some  few 
remarks  mstead  of  l,y  an  elal.rate  speech,  as  Mr^Iad-son  do  s  nZive I 
summary  of  an  a.ldress.  It  is  said  in  Thr  Secret  Proceedings  o  Zf  Zal 
Conrenuon,  cons.stmg  of  notes  made  by  Robert  Yates,  a  del  glte   from 

resolutions,  that      Mr.  C.  Pmckney.  a  memlx^r  from  South  Carolina    then 
added,  that  he  had  reduced  his  ideas  of  a  new  government  to  a  sys    n"  wh,  h 
he  reau.  and  confes.sed  it  was  .rounded  on  the  sauK-  principle  as  c^t^e    Ik 
resolutions.    •     Mr.   Pinckney's  plan,  of  which  the  te.xt  i's  not  co„u^„e      , 
any  contemporar>;  account,  was  likewise  referred  to  the  Committee  o    t 
Whole,  and  the  Convention  adjourned  for  the  day 

At  a  later  period  a  plan  was  laid  before  the  con^ention  by  Mr   Putcr 
•/tid,  pp.  377-«.  • 


J; 


»  Y,,cs,  Secr.t  I'roccedin.is.  p.  97.      '  "''''■  ^'"'-  '"'  '"•  ^* 


MKROCOrv   mOWTION  TBT  CHART 

(ANSI  and  ISO  TfST  CHAIIT  No.  J) 


A 


d     /APPLIED  IM/C3E     In 


'653   Eo«t   Mo.f>   Street 

«och»ite'.   Sew   York         t4609       USA 

(716)   482  -  0300  -  Phon* 

(716)   2M-  5989  •  ftf 


164 


THE  UNITED  STATES:   A  STUDY   IN   INTERNATIONAL  ORGANIZATION 


f«J 


National 
T.  Federal 
Ciovcrnment 


son  of  New  Jersey,  and  called  indifferently  the  Patterson  or  the  New  Jersey 
plan.  This  proposed  a  revision  of  the  Articles  of  Confederation  in  accord- 
ance with  the  recommeii.lation  of  Congress,  but  it  did  not  meet  with  favor 
and  was,  after  discussion  and  debate,  rejected  in  favor  of  Mr.  Randolph's 
resolutions,  although,  as  will  appear,  it  had  a  decided  influence  on  the  course 
of  proceedings,  and  was  referred,  with  the  Randolph  resolutions,  as  amended 
and  enlarged,  and  with  Mr.  Pinckney's  plan,  to  the  Committee  of  Detail  to 
prepare  a  draft  of  the  Constitution. 

These  were  the  only  plans  laid  before  the  convention  at  any  time, 
although  Alexander  Hamilton  felt  called  upon,  as  did  Mr.  Pinckney,  to  ex- 
press his  personal  views  to  the  convention.  They  were,  in  the  language  of 
the  day,  "  high  toned,"  that  is  to  say,  they  looked  to  a  consolidated  form  of 
government,  consisting  of  a  threefold  distribution  of  powers,  in  which  the 
States  were  allowed  to  exist  but  reduced  practically  to  the  level  of  provinces, 
in  which  the  executive  was  to  hold  office  during  good  behavior,  and,  among 
other  powers,  was  to  appoint  governors  of  the  States,  to  hold  office  during 
his  pleasure.  This  project  fell  flat,  meeting,  as  far  as  known,  only  with 
the  approval  of  George  Read  of  Delaware,  and  its  distinguished  author  did 
not  feel  encouraged  to  present  a  draft  of  a  constitution  in  accordance  with 
his  views,  although  he  did  hand  one  to  Mr.  Madison  at  a  much  later  period 
before  the  adjournment  of  the  Convention.  It  was  not  laid  before  the 
Committee  of  Detail  and,  so  far  as  known,  Mr.  Hamilton's  views  had  no 
influence  with  that  committee  or  in  the  convention,  although  his  influence 
later  brought  about  the  ratification  of  the  Constitution  by  the  State  of  New 
York.'  To  secure  this  object  and  to  turn  the  tide  of  public  opinion  in  favor  of 
the  Constitution,  he  proposed  and,  with  the  large  cooperation  of  James  Madi- 
.son  and  some  help  from  Mr.  Jay,  wrote  and  published  in  the  press  a  series  of 
some  eighty-six  articles  which,  known  in  their  collected  form  as  The  Fed- 
eralist, are  universally  regarded  as  the  classic  exposition  of  the  Constitution. 

Before  passing  to  a  consider;ttion  of  the  main  subdivisions  of  Mr. 
Randolph's  resolutions,  it  is  advisable  to  call  attention  to  Mr.  Madison's 
distinction  between  a  r  onal  government,  on  the  one  band,  operating  upon 
individuals,  and  a  purely  federal  government  on  the  other  hand,  operating 
upon  States,  a  distinction  which  arose  early  in  the  course  of  debate.  It  did 
not  appear  clearly  in  the  text  of  Mr.  Randolph's  resolutions,  although  it  may 
have  been  in  the  mmds  of  the  Virginia  members  who  stood  sponsor  for  the 
plan.     In  any  event,  the  national  legislature  was  empowered  by  the  sixth  reso- 

'  In  his  ^fi•mllirs.  tinder  ilato  of  November  19,  1318,  John  Quincy  Adams  records  Major 
William  Jackson,  of  Philadelphia,  who  had  called  upon  him,  as  saying,  "He  told  nie  how 
he  had  \w^n  clioscn  Secretary  to  the  Convention  .  .  .  and  said  that  by  far  the  most  efficient 
member  of  the  Convention  was  Mr.  Madison;  that  Mr.  Hamilton  took  no  active  part  in  it. 
anil  made  only  one  remarkable  speech."  The  Records  of  the  Federal  ConvenUon  Max 
Farrand,  Editor.  Vol.  HI  C1911).  p.  426. 


THE   FEDERAL   CONVENTION:   AN   INTERNATIONAL   CONFERENCE 


165 


I 

I 


lution  "  to  call  forth  the  force  of  the  Union  ag".  any  member  of  the  Union 
failing  to  fulfil  its  duty  under  the  articles  thereof."  '  On  the  very  next  day 
Mr.  Mason  observed,  as  reported  by  Mr.  Madison,  "  that  the  present  con- 
federation was  not  only  deficient  in  not  providing  for  coercion  &  punish- 
ment ag".  delinquent  Slates ;  but  argued  very  cogently  that  punishment  could 
not  in  the  nature  of  things  be  executed  on  the  States  collectively,  and  there- 
fore that  such  a  Gov',  was  necessary  as  could  directly  operate  on  individuals, 
and  would  punish  those  only  whose  guilt  required  it."  '  The  day  following,  sutM™  °' 
when  this  clause  of  the  sixth  resolution  came  up  for  consideration,  Mr.  Madi- 
-son  himself  observed,  as  stated  in  his  Notes,  "  that  the  more  he  reflected  on  the 
use  of  force,  the  more  he  doubted,  the  practicability,  the  justice  and  the  efficacy 
of  it  when  applied  to  people  collectively  and  not  individually. —  A  union  of 
the  States  containing  such  an  ingredient  seemed  to  provide  for  its  own  de- 
struction. The  use  of  force  ag".  a  State,  would  look  more  like  a  declara- 
ti.n  of  war,  than  an  infliction  of  punishment,  and  would  probably  be  con- 
sidered by  the  party  attacked  as  a  dissolution  of  all  previous  compacts  by 
which  it  might  be  bound.  He  hoped  that  such  a  system  would  be  framed 
as  might  render  this  recourse  unnecessary',  and  moved  that  the  clause  be 
postponed," —  a  motion  which  was  "  agreed  to  nem.  con."  ^ 

There  was  no  opposition  to  the  general  plan,  as  the  States  were  familiar 
with  the  threefold  division  of  power  and  their  delegates  were  apparently 
willing  to  provide  the  Union  with  a  government  of  this  kind.  Indeed,  the 
threefold  division  seemed  to  disarm  opposition  and  to  lead  the  delegates 
to  invest  the  government  with  greater  power  than  would  otherwise  have 
been  the  case,  and  Mr.  Madison  quotes  Mr.  Butler  of  South  Carolina  as 
saying,  in  the  session  of  May  30,  1787,  on  the  very  threshold  of  the  de- 
bates, "  that  he  had  opposed  the  grant  of  powers  to  Cong*,  heretofore,  be- 
cause the  whole  power  was  vested  in  one  body.  The  proposed  distribution 
of  the  powers  into  different  bodies  changed  .he  case,  and  would  induce  him 
to  go  great  lengths."  * 

In  a  constitution  meant  to  endure, —  and  the  delegates  of  the  Federal 
Convention  hoped  they  were  doing  no  vain  thing, —  it  was  impossible  to 
foresee  every  contingency  and  to  provide  against  it  by  a  specific  enumera- 
tion of  powers.  The  convention  therefore  wisely  contented  itself  with  the 
enumeration  of  what  may  Ije  called  general  powers  which  a  government 
adequate  to  the  exigencies  of  the  Union  should  possess,  powers  which  could 
be  better  exercised  by  the  Union  of  the  States  than  by  any  one  State.  Too 
long  to  quote,  it  is  difficult  to  summarize  these  powers,  inasmuch  as  tl.e 

'  Docuntt'tiliiry  History,  Vol.  iii,  p.  18. 
"Ibul.,  p.    >2. 
^I'i,l .  p.'.  .',i-4. 
♦  Ihid.,  p.  21. 


Knumeration 
of  Cicneral 
Powers 


i) 


}    I 


•♦*»'■ 


166  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

language  of  the  Constitution  is  so  familiar  as  at  times  to  defy  paraphrase 
and  so  concise  as  to  make  a  summary  seem  longer  than  the  original.  With- 
out attempting  the  impossible,  it  may  be  observed  that  the  great  defect  of 
the  Articles  of  Confederation  was  met  and  overcome  by  empowering  the 
Congress  "  to  lay  and  collect  taxes,  duties  and  imposts,"  "with  the  wise  and 
indeed  necessary  proviso  that  they  should  be  uniform  throughout  the  United 
States.  This  would  enable  the  more  perfect  Union  to  pay  the  debts  already 
contracted  and  those  which  should  be  incurred  in  the  future,  and  to  do  what 
the  League  of  Friendship  under  the  Articles  of  Confederation  had  never 
been  able  to  do,  namely,  to  "  provide  for  the  common  defence  and  general 
w-eifare  of  the  United  States."  It  was  foreseen  that  the  government  of  the 
Union  might  need  to  borrow  money,  therefore  it  was  specifically  authorized 
to  do  t'  s. 

The  second  great  defect  of  the  Articles  was  the  chaotic  condition  of  com- 
merce and  the  inability  of  the  Confederation  to  regulate  it.  Ail  attempts  to 
amend  the  Articles  in  this  sense  had  failed,  but  they  were  not  fruitless,  inas- 
much as  the  Annapolis  Convention  called  for  t'.iis  purpose  brought  aboit 
the  Federal  Convention  of  1787,  which  accomplished  it.  Hence  the  Con- 
gress was  given  power  to  regulate  commerce  with  foreign  nations,  the  several 
States,  and  the  Indian  tribes. 

The  Confederation  was,  according  to  its  critics,  largely  a  bankrupt  con- 
cern. It  therefore  had  very  special  reasons  to  recognize  the  need  of  uniform 
laws  on  the  subject  and  invested  Congress  with  the  power  to  make  them. 
It  was  necessary  to  have  money,  therefore  Congress  was  empowered  to  coin 
money,  to  regulate  its  value  and  that  of  foreign  coin,  and  in  the  interest 
of  trade  and  commerce  to  fix  the  standard  of  weights  and  measures.  And 
to  make  these  clauses  effective,  the  Congress  was  authorized  to  punish  counter- 
feiting of  the  securities  and  current  coin  of  the  United  States.  Allied  with 
this  phase  of  the  subject,  although  not  necessarily  connected  with  it,  was  the 
progress  of  science  and  useful  arts,  therefore  the  Congress  was  given 
authority  to  make  laws  securing  to  authors  and  inventors  copyrights  and 
patents  for  "  their  respective  writings  and  discoveries." 

As  it  was  recognized  that  a  vast  Union  could  not  be  held  together  for 
any  length  of  time  without  means  of  communication,  the  Congress  was 
authorized  to  establish  post  ol'tices  and  post  roads.  Vast  indeed  the  terri- 
tory was,  although  but  a  fraction  of  that  now  subject  to  the  laws  of  the 
Union.  It  was  sparsely  settled,  but  it  was  anticipated  thct  large  numbers 
of  persons  would  forsake  the  old  to  find  fortune  and  happiness  in  the  new 
world.  Accordingly  the  Congress  was  given  the  power  "  to  establish  an 
uniform  Rule  of  Naturalization  "  that  the  new  might  enjoy  the  rights  of 
the  old. 


li 


THE   FEDERAL  CONVENTION:   AN   INTERNATIONAL   CONFERENCE 


167 


•3 


The  government  was  to  be  one  of  laws,  not  of  men,  therefore  there  was 
to  be  a  Supreme  Court  which  would  interpret  the  laws  and  apply  them 
to  the  concrete  cases  as  they  arose  between  States  as  well  as  their  citizens, 
and  likewise  inferior  tribunals.  But  the  law  was  not  merely  to  be  the  law 
of  the  States  or  of  the  Union;  it  was  to  be  a  law  of  the  seas  as  v  .'i,  and 
the  Congress  was  given  the  power  to  punish  piracies  and  felonie.  committed 
on  the  high  seas  beyond  the  jurisdiction  of  the  States  and  of  the  United 
States.  Wisely  the  Congress  was  vested  with  the  power  to  define  and  punish 
"  offences  against  the  Law  of  Nations,"  a  mere  clause,  yet  introducing  the 
whole  body  of  international  law,  making  it  a  part  of  the  Constitution  of  the 
I  'nited  States  and  of  each  State  of  the  Union,  for  every  citizen  and  inhabitant 
thereof.  The  Law  of  Nations  of  that  day  reccgnized  letttii  of  manjue  and 
reprisal,  as  it  still  does  captures  on  land  and  w.iter.  Congress  could  there- 
fore have  enacted  laws  on  these  subjects  without  a  specific  authorization, 
yet  the  experience  of  the  Confedei_.ion  doubtless  suggested  che  advisability 
of  specific  mention.  They  were  then  and  are  now  incident  to  war,  and  on 
this  point  the  framers  of  the  Constitution,  intent  upon  a  government  of 
laws  not  of  men,  were  unwilling  to  trust  any  person  to  declare  war,  even 
the  august  president  of  the  convention.  General  Washington  himself,  already 
designated  in  the  minds  and  hearts  of  his  countrvmen  to  be  the  first  of  a 
line  of  presidents  of  the  Union.  Therefore  only  the  Congress  was  to  de- 
clare war,  a  body  whose  lower  house  was  composed  of  representatives  of  the 
people  of  each  State  chosen  by  the  people  themselves  divided  into  districts, 
and  whose  upper  house  was  composed  of  two  representatives  from  all  States, 
large  and  small,  representing  the  States.  Representatives  of  the  people  and 
of  the  States  do  indeed  declare  war  ttpon  occnsinn.  hut  not  as  easilv  and 
readily  as  meml)ers  of  a  family  owing  their  position  and  prestige  to  war  and 
too  often  anxious  to  perpetuate  them  bv  the  same  means. 

The  Congress  has  so  far  been  given  the  power  to  raise,  borrow,  and  coin 
money,  to  regulate  commerce,  to  establish  means  of  communication,  and 
to  protect  what  may  be  called  intellectual  property,  to  establish  inferior 
tribunals  to  administer  within  the  States,  to  accept  jurisdiction  and  punish 
violations  of  the  Law  of  Nations,  and  to  declare  war.  Consequentlv  the 
Congress  was  vested  with  the  powers  incidental  to  the  declaration  of"  war, 
the  power  to  raise  and  support  land  and  naval  forces  and  to  make  rules 
for  their  government.  The  war  of  course  was  to  be  carried  on  by  the 
United  States,  not  by  anv  one  of  the  States,  inasmuch  as  each  had  by  tha 
Constitution  renounced  the  right  to  wage  war  unless  attacked.  The  presi- 
dent was  indeed  to  lie  Commander-in-Chief  of  the  army  and  navy,  but  Con- 
gress was  to  raise  and  support  the  armies,  to  provide  and  maintain  a  navy, 
and  to  make  the  niles  of  their  government,  as  well  as  to  declare  war.     And 


I      __J     Inttrnttionil 
',    and    Law  in  the 
Constitution 


i  i 


168  THE   UNITED  STATES:   A  STCDY   IN   INTERNATIONAL  ORGANIZATION 


Oovcrnrrnt 
of  I^WK  aixl 
Not  of  .Ntrii 


^V 


Scat  of 
Government 


Government 
of  Limited 


to  make  the  rights  of  Congress  secure  in  the  premises,  no  appropriation  of 
money  for  these  purposes  was  to  be  for  "  a  longer  Term  than  two  Years." 
War  was  thus  to  !«  declared  l)y  civilians,  armies  and  navies  were  to  be 
raised  and  supported  by  civilians,  the  rules  for  their  government  were  to  be 
made  by  civilians,  the  army  and  navy  in  the  war  were  to  be  commanded  by 
a  civilian,  to  the  end  that  this  may  Ije  a  government  of  laws  and  not  of  men. 
\\  hile  the  States  as  such  were  not  to  wage  war,  it  was  clearly  understood 
that  they  might  have  need  of  an  armed  force  to  protect  them  and  their 
peoples,  therefore  each  was  to  have  a  militia  to  be  raised  and  officered  by 
them,  to  l)e  commanded  by  them  in  times  of  peace,  but  in  time  of  war  to 
l)e  called  into  the  service  of  the  States  as  a  whole  instead  of  the  individual 
States.  Therefore  the  Congress  was  given  the  power  to  call  forth  "the 
Militia  to  execute  the  Laws  of  the  Union,  suppress  Insurrections  and  repel 
Invasions."  Because  of  this  eventual  service,  the  Congress  was  authorized 
to  provide  for  "  organizing,  arming,  and  disciplining,  the  Militia,  and  for 
governing"  the  part  of  it  taken  into  the  service  of  the  Union,  the  States 
reserving,  however,  the  appointment  of  officers  and  the  right  of  training  the 
militia  according  to  the  discipline  prescribed  by  Congress. 

Thus  far  we  have  a  government  without  a  habitat,  for  the  Union  wns 
a  Union  of  the  States,  and  the  territory  to  the  we^t  of  the  States  belonged 
to  the  States.     There  was  not  a  foot  of  American  soil  belonging  to  the  Union 
as  such.     In  this  Union  the  States  were  to  lie  etiuals.     There  was  to  be  no 
primus  inter  pares.     No  State  was  to  lie  vested  with  any  prerogative,  privilege 
or  function  not  possessed  by  all.     Therefore  the  Congress  was  authorized 
to  accept  and  exercise  exclusive  jurisdiction  within  a  district  not  exceed- 
ing ten  miles  square  as  particular  States  might  cede,  to  l)ecome  "  the  Seat 
of  the  Government  of  the  United  States,"  and  the  Congress  was  similarly 
authorized  to  exercise  a  like  authority  "  over  all  places  purchased  by  the  Con- 
sent of  the  Legislature  of  the  State  in  which  the  Same  shall  be,  for  the  Erec- 
tion of  I'orts,  Magazines,  .Arsenals,  dock- Yards,  and  other  needful  Buildings." 
This  was  indeed  a  government  of  limited  ])owers  and  limited  extent,  the 
seat  of  government  itself  ten  miles  square,  to  !«  ceded  by  the  States  if  they 
should  choose  to  do  so.  and  any  property  acf|uired  within  the  States  to  be 
purchased  l)y  the  Congress  with  the  consent  of  the  legislature  of  the  State 
involved.     The  enumeration  of  these  jwwers  necessarily  carried  with  it  the 
right  to  make  such  laws  as  should  I)e  necessary  and  proper  to  carry  them 
into  execution,  but  it  was  well  to  say  so  in  order  to  remove  doubt  or  lui-,- 
tmderstanding.  as  also  to  authorize  the  Congress,  as  was  done  by  the  fin.il 
paragraph  of  the  eighth  section  of  the  first  article,  to  carry  into  execution 
"  all  other  Powers  vested  by  this  Constitution  in   the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof." 


VIII 


l! 


r 


CREATION  OF  THE  FEDERAL  LEGISLATURE 

All  states  have  three  elements,  and  the  good  law-giver  has  to  regard  what  is  expedient 
for  each  state.  When  they  are  well-ordered,  the  state  is  well-ordered,  and  as  they  differ 
irom  one  another,  constitutions  differ.  What  is  tlic  element  first  (1)  which  (leliberatcs 
about  puhlie  affairs:  secondly  (2)  which  is  cuncrned  with  the  magistrates  and  determines 
what  they  should  be.  over  whom  they  shoulil  i  ^crcise  authority,  and  what  should  l)e  the 
mode  oi  electuig  tliem;  and  thirdly  (..?)  which  has  judicial  power?  \The  Politics  of  Arts- 
totlc,  ISngliih  translation  by  benjamin  Jourtt,  iSHs,  I'ol.  I,  Book  IV,  Ch.  14,  f.  133.) 

They  saw  that  to  live  by  one  man's  will  became  the  cause  of  all  men's  misery.  This  con- 
strained them  to  come  unto  laws,  wherein  all  men  might  see  their  duties  beforehand,  and 
know  the  penalties  of  trnnsgressing  them.  (Kiihard  Hooker,  Of  the  Laws  of  Ecclesiastical 
Polity,  IS04,  Church  edition,  186S,  Book  I,  Section  10,  p.  $6.) 

The  government  of  the  I'nited  States  has  been  emphatically  termed  a  government  of 
laws,  and  not  of  men.  It  will  certainly  cease  to  deserve  this  high  appellation,  if  the  l.iws 
furnish  no  remedy  for  the  violation  ot  a  vested  legal  right.  C'^^»'-  Chief  Justice  Marshall  in 
Marbury  v.  Madison,  i  Cranch  137,  163,  decided  in  1&03.) 

Relation  being  had  to  these  two  times.  Government  (to  define  it  de  jure,  or  according 
to  antient  Prudence)  is  rn  Art  whereby  a  Civil  Society  of  Men  is  instituted  and  preserv'd 
npon  the  Foundation  o*  common  Right  or  Interest;  or  (to  follow  Aristotle  and  Livy) 
It  is  the  Fmpire  of  Laws,  ami  not  of  Men. 

And  Government  (to  define  it  de  facto,  or  according  to  modern  Prudence)  is  an  Art 
whereby  some  m.nn.  or  some  few  men,  subject  a  City  or  a  Nation,  and  rule  it  according  to 
his  or  their  private  Interest :  which,  because  the  Laws  in  such  cases  are  made  according  to 
the  interest  of  a  man.  or  of  some  few  Families,  may  he  said  to  be  the  Fmpire  of  Men.  and 
not  of  Laws.  (James  Harrington,  The  Common-uvalth  of  Oceana,  /rtirt,  Toland  edition, 
1137,  Part  I,  The  Preliminaries,  Shewing  the  Principles  of  Corernmcnt.  p.  37.) 

But  it  is  plain  that  where  the  I-aw  is  made  by  one  Man.  there  it  may  be  unmade  by  one 
man;  so  that  Ihe  Man  is  not  govern'd  by  the  Law.  but  the  I  aw  by  the  Nian :  which  amounts 
to  the  Government  of  the  Alan,  and  not  of  the  Law :  Whereas  the  Law  heitit;  not  to  be 
made  but  by  the  Many,  no  man  is  govern'd  by  another  man,  but  by  that  only  which  is  the 
common  interest ;  by  which  means  this  amounts  to  a  Government  of  Laws,  and  not  of 
Men.  (Jantes  Harrington,  The  Art  of  Law-giving,  7(559,  Toland  edition,  1737,  Preface,  p. 
3S6.) 

Where  the  People  are  not  over-balanc'd  by  one  Man,  or  by  the  Few,  they  are  not  capable 
of  aav  other  Superstructures  of  Government,  or  of  any  other  just  and  quiet  settlement 
whatsoever,  than  of  juch  only  as  consists  of  a  Senate  as  their  Counsillors.  of  themselves  or 
their  Representatives  as  Sovereign  Lords,  and  of  a  Magistracy  answerable  to  the  People, 
as  distributers  and  executioners  of  the  Laws  made  by  the  People.  And  thus  much  is  of 
absolute  necessity  to  any  or  every  Government,  that  is  or  can  be  properly  call'd  a  Common- 
wealth, whether  it  be  well  or  ill  order'd. 

Ihit  the  necessary  definition  of  a  Common-wealth,  any  thing  well  order'd,  is.  That  it 
is  a  Goveri-.tncnt  consisting  of  the  Senate  proposing,  the  People  resolving,  and  the  Magis- 
tracy executing. 

Magistracy  is  a  stile  proper  to  the  executive  part :  yet  because  in  a  Discourse  of  this  kind 
it  is  hardly  avoidable,  but  that  such  as  are  of  the  proposing  or  resolving  Assemblies,  will 
b-  sometimes  compriz'd  under  this  name  or  stile,  it  shall  1k"  enoufih  for  ex  nise  to  say.  that 
Magistracy  may  be  esteem'd  of  two  kinds ;  the  one  proper  or  Executive,  tl  e  other  improper 
cr   Legislative.     (James  Harrington,   The  Art  of  Laic-^iiing,   i6=,g,   Tolaiid  edition,  1737, 

Ck.  PI,  p.  393.) 

Thirdly.  I  know  what  is  said  by  the  several  admirers  of  tiio>iari/iy,  aristocracy  and  de- 
mocracy, which  .ire  t!ie  rule  of  one.  a  few.  and  many,  and  are  the  t!iree  common  ideas  nf  gov- 
ernmeiil,  when  men  discotirso  on  the  subject.     I'lit  I  ehtisc  !u  i-ol-. e  the  controversy  with  this 

169 


170 


»*ii 


THE   UNITED  .states:   A   STUDY   IN    INTERNATIONAL  OBCANIZATION 


small  rltstinrtion,  and  it  IxlonRs  to  all  three    Ahv  trnTemmt^t  !.  f^^.  ,    .i    »     .i         j 

(Whatever  l^.thc  frame)  „.*.?r..  <h,' iJl'^.l^.t]!  Z7'.T,:'a"/:%^^^^^ 

more    Man  tin,  „  tyranny   .^igarchy.  or  coni...io,-..     Ulilliam  rrLTrVfVe    othTfVam, 

,L:'^  r7  I'^riT'^'''''''^  'Z^-''  *'■"•  ^••''••V  ^'^'"'•-  The  FHcral  and  Stale  CohTh- 
TM/a)  '^'""■"'•^.  <»«i  other  Organic  Law  of  the   United  Stale,.  Pari  /[,   ig;;. 

in  iwe^'aml  sTf'.u^n'nh  '"'""!«  '"'°  Society  being  the  Enjoyment  of  their  Properties 
^  i  .  t:     ■     Saf  ly.  »iiJ  the  Rrcat  mMrun.cnt  and  means  of  that  bcinif  the  Uws  establish'd 

lish,,,,,  of  the  U,,,slal,u-   I'owir ;   as   the  first  and  fundamental  natural  Law    which  is  to 

Uo^ernmeHl,  i(m.  Book  II.  Ch.  XI.  tecUon   IS4.  Works,  Edition  of  nn.  Vol.  II.) 

own^  Con  "em'"''"'  ''tU^  ■"""V  '"'"',  ^'°"\  ^7  V?".  '"X  P"'  °'  *>'»  ^'■"/"•''')'  withom  hi, 
ron.u.r  .  n  •  •  ■  '  ""'  ".""■"''  J?  '"  ''■•'"■''  '"  '^"vcrnments  where  the  Legislative 
con.,„s.    wholly   or   in   part.    ,n   AssemMie,   «l,i  ••   are    variable,    whose    Meml^rn     ipm    the 

wi^        ^r.".  •*''  V'T''')'  '!;'  ^"'V*-^««.""'I"  -rie  common  I,aws  of  their  Conntrj^ '^equally 

When  the  leuislative  and  executive  powers  are  united  in  the  same  person   or  in  the  same 

molrl™^*'""."'- ."",■■;■  ""  '*  "°  '"'^■^'y:  ''"'""^  apprehensions  m^y  ar»e?lest  he  ^me 
monarch  or  senate  shonhl  enact  tvrannical  laws,  to  execute  them  in  a  tyrannical  manner 

Again  there  is  no  liberty,  if  the  power  of  jiidsinR  be  not  separated  from  the  Sative 
wo  iTl'ie  e'xn  ""77"  \"'  "  ''""'''  ,*",''  "'f  '^Ki«'»«ivc.  the  life  and  lilKrty  of  the"  b  ect 
l^^  l«- /^P-"'!  to  arlMtmry  control,!:  f.,r  the  jiuIkc  wonld  then  be  the  legislator.  Were 
It  joined  to  the  execntive  power,  the  judge  might  behave  with  all  the  violence  of  an  oppressor. 

of  II  Luu^t  r.,^?u  "  '■?'■'■  """?'•  *."'■  "":  "''"■  "•»"•  "'  ^^'  ">"«•  body,  whether 
Th,,     f  .■        1    the  people,  to  exercise  those  three  powers,  that  of  enacting  laws,  and 

^^tvoi  LLokxCch^Ti.p'^;-: '''  ^""^ '  '■"''••  "''■  ^-""'' '--'-"""-  "f 

.b.'lv"''"  ,'?"'"'"l«T«  "f. ''"»  commonwealth,  the  legislative  department  shall  never  exercise 
he  exe>-  Mivi-  and  ju. I.cia  pon-ers,  or  either  of  them:  the  execntive  shall  never  exerri" 
he  ..sisl.u.ve  an.i  jnd.cal  powers,  or  either  of  them;  the  judicial  shall  never  exercise  the 
WsLitue  .-,.,"  execntive  powers  or  either  of  them:  to  the  end  it  may  be  a  government 
o  laws,  ami  not  of  men  (neclaraUon  of  Rights  of  the  Inhahilanis  of  the  Commonwealth 
of  Mas,arhusetls  nfo.  Ben:  P.-rley  Pcore.  The  Federal  and  Stale  Constituticms.  Colonial 
Charters,  and  other  Ori;anic  Laws  of  the  inited  States,  Pari  /.  tg;7,  /..  9<jo,  Article  XXX.) 

"Sir,--  said  Rufiis  Choatc  in  the  Massachusetts  Convention  of  IRSJ,  for  revising  the 
Constitution  of  the  Stale  (1  Debates,  IJO).  "that  same  Dill  of  Rights,  which  so  solicitously 
separates  execntive,  judicial,  and  legislative  powers  from  each  otlier,  'to  the  end  —  in  the 
hne  and  noble  expression  of  Harrington.  l»irrow.d  from  the  'ancient  prudence,'  one  of 
those  historical  phrases  of  the  ol.l  glorious  school  „f  lil«Ttv  of  whicli  this  Bill  of  Rights  is 
so  full.— and  which  phrases  I  entreat  the  good  taste  of  my  accomplished  friends  in  my 
eve.  to  whom  ,t  ,s  commntMl.  to  spare  in  thHr  v.-ry  lUst.  as  thev  wonM  spare  the  general 
l-nglish  ot  the  Kible.—  to  the  end  it  may  l)e  a  government  of  laws,  and  not  of  men':  that 
same  Hill  of  Kn;lits  separates  the  people,  willi  tlie  same  solicitude,  and  for  the  same  rWson. 
from  every  p.irt  of  their  irtn.il  government.—'  to  the  end  it  niav  be  a  government  of  l;iws 
and  not  of  men.  (James  Bradley  Thayer.  Cases  on  Conslilulional  Law.  1S05  Vol.  I 
foot-note.  ft'.  3S1-SS5.) 

The  idea  of  an  .i.tnat  representation  of  all  classes  of  the  people  bv  persons  of  each  class 
IS  altogether  visionary  I  nless  it  were  expresslv  provided  in  the  Constitution  that  each 
different  occupation  s'-oiild  send  one  or  more  members,  the  thine  would  never  take  pl.'ce 
in    practice.     {Alexander    Hamilton.    The    Federalist.    No.     ?5    (jjI.    i7S8     Ford     Editor 


(Alexander   Hamilton.    The   FederaVv 


The    door    oiijrl't    to    be    eqnallv    open    to    all 
^'"^  i'>  \3l\.  '7<W.  Fonl.  Friilnr,  /W.  />.  .VO.) 

The  sysfeni  of  representation  which  grew  up  in  the  early  colonies  under  no  legal  authorit- 
of  the  F.nghsh  crown   (with  the  exception  of  Maryland,  where  it  was  only  authorized  and 


CREATION   OF   THE    KKDF.RAL   LKCISLATLHE 


171 


not  directed),  camp  to  \>e  recogni/cd  and  ratifi.-d  l>y  »iil>-ic<|iicnt  charters.  It  wai  ratiiUd 
in  Connt-i-iiciit  by  the  charter  of  1W)2;  in  Rhode  Inland  by  the  rliartcr  of  IWi.l  and  lali-r 
m  MaMachusitU  by  ihe  charter  of  1602.  In  the  colonies  .stalilishcd  after  the  Rcnt.iration 
in  \0M  It  became  luiial  for  the  riiKhsh  kin>?  to  wrant  to  the  |>ro|,riclor  iKrmnsi.m  to 
Kive  to  the  frecnun  Ihe  right  to  a  share  in  ksislation,  either  in  |wr^oll  or  liv  dumtiei 
It  thus  seems  evul.nt  that  the  r.prcentative  ,ystem  in  .America  had  its  oriL'in  in  the 
peculiar  circmi.slaiices  in  which  the  early  colonies  were  placed.  It  was  Ihe  product  of  the 
practical  inslimt  of  the  Teutonic  race,  which  had  ^ivcn  hirth  to  a  form  of  representation 
even  before  the  time  of  Henry  III.  or  F.dward  I.  It  was  not  cstahhshed  hy  any  charier 
of  the  l.UKlish  kniK,  and  did  nut  receive  a  chartered  saucliou  until  it  had  h. c.nc  an  estab- 
lished insiilutioii  III  the  colonies.  It  had  its  own  peculiar  features  in  America,  which  were 
evidently  not  patterned  after  ally  e.xistiiiK  model,  it  was  ralher  a  reversion  to  an  earlier 
type  than  a  reproducti..n  of  an  e.tistins  .me;  ami  wa^.  in  fa  t.  more  truly  representative  .if 
,w-m""  ^'  ,i'  "'  "ii',  '"!''''''  ''""'  "■■"  '''^'  contemporary  Kni-lish  lloise  of  lomnion-. 
<"'."'?'  '■,  •'''"■.'■•\'' J("'  '■"■•"  ^'l'"'-  <-,mstituti;,s,  .Imtcih  of  III.-  .limrUan  .(.uJcmy  ,./ 
rolitual  and  Soaal  Scwnce,  iSvj,  I'ol.  4,  />.  jto.) 

The  enlarRemeut  of  population  must  always  be  attended  either  bv  the  decay  of  demo- 
cratic institutions,  or  else  by  the  adoption  of  some  form  of  representation.  The  special  form 
which  representation  will  assume  in  any  people,  which  i^issesse-i  the  political  saK'acity  to 
solve  the  problems  (frowinR  out  of  its  own  sixial  life,  will  be  deterniii'.d  I.v  !'.,■  eir.-mi- 
stances  of  time  and  place.  It  will  be  seen  that  the  form  of  representation  which  grew  up 
in  the  .American  colonics  was  not  a  renroduction  of  the  el.iborate  and  romivirati<  elv  matnre 
systeiTi  which  then  existed  in  F.nKland,  but  was  the  outgrowth  of  the  simple  life  of  the 
colonists  themselves,  and  was  moreover  marked  Iv  those  inchoate  features  which  distini-uish 
a  primitive  from  a  well-developed  institution.  The  need  of  representation  was  felt  by 
the  colonists  as  soon  as  their  population  became  scattered  and  unable  to  meet  in  a  single 
assembly.  The  system  arose  from  the  rennirements  of  the  colonists  tliemsdves.  and  was 
fullv.  established  before  it  was  recoi;ni/ed  by  the  Fi'trli-h  crown  (  ffi'/,„,„  f.  \fnr,'\.  Tht' 
First  Stale  Cnnslilutions,  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
1893,  Vol.  4,  p.  X}.) 

A  federal  state  requires  for  its  formation  two  conditions. 

There  must  exist,  in  the  first  place,  a  tiodv  of  countries  such  as  the  Cantons  of  Swif.er- 
land,  the  Colonies  of  .■\merica.  or  the  Provinces  of  Canada,  so  closely  connected  bv  locality, 
by  history,  by  race,  or  the  like,  as  to  be  capable  of  bearinp;,  in  the  eyes  of  their  inliabitauts, 
an    impress   of   common    nationality.  .  .  . 

.\  second  conditi(.n  absolutely  essential  to  the  f  lun.liii"  of  a  federal  system  is  the  existence 
of  a  very  peculiar  state  of  sentiment  among  the  inliabitauts  of  the  countries  which  it  is 
proposed  to  unite.  They  must  desire  union,  and  nu'st  not  desire  unity.  i.V'crl  fcim 
Picey.  Introduction  to   the  Study  of  the  Law  of  the  Constitution,   ;<?.S'i,  *(/i   edition,  ton, 

A  federal  state  is  a  political  contrivance  intended  to  reconcile  national  unitv  and  power 
with  the  maintenance  of  "state  rights."  The  end  aimed  at  fixes  the  essential  character  of 
federalism.  For  the  method  by  which  Federalism  attempts  to  reconcile  the  apparently  in- 
consistent claims  of  national  sovereignty  an<l  of  state  sovereiijnty  consists  of  the  formation 
of  a  Constitution  under  which  the  ordinary  powers  of  sovereiKUty  are  elaborately  divided 
between  the  common  or  national  government  and  the  sei>arate  slates.  The  "letails  of  thu 
division  vary  under  every  different  federal  constitution,  but  the  general  principle  on  which 
it  should  rest  is  obvious.  Whatever  concerns  the  nation  as  a  whide  slinild  be  placed  umlcr 
the  control  of  the  national  government  .Ml  matters  which  are  not  primarily  of  common 
interest  shoulil   remain   in  the  hands  of  the  several   States.  .  .  . 

From  the  notion  that  national  unity  can  lie  reconciled  with  state  independence  by  a 
division  of  powers  under  a  comm.m  constitution  Ijctween  the  nation  on  the  one  haud  and 
the  individual  States  on  the  other,  flow  the  three  leading  characteristics  of  couiplctrly 
developed  federalism. —  the  supremacy  of  the  constitution  —  the  distribution  amoui;  ho.liis 
with  limited  and  co-ordinate  authority  of  the  dilTerent  powers  of  government  —  the  authority 
of  the  Courts  to  .act  as  int  rurciers  of  tlie  coi'sti'utiou.  I  '!'u-rl  I'mii  /'iVrv.  Iiihrductioii 
to  the  Study  of  the  Law  of  the  Constitution,  iHSf,  8th  edition,  ivi,^,  ff.  ijt^iio.) 


CHAPTER  VIII 


WR 


The 

Spirit  of 
CuinpromiK 


The  Two 
Branchet 
of  iht 
L«Ri»lature 


CREATION    OF   THE   FEDERAL    LEGISLATURE 

In  Mr.  Randolph's  resolutions  the  legislative  power  precedes  the  execu- 
tive and  the  judiciary,  and  therefore  was  the  first  to  be  taken  up;  and  the 
very  first  resolution  of  the  group  dealing  with  legislative  power  raised  the 
issues  which  divided  the  delegates  of  the  Ijirge  and  the  small  States  into 
hostile  camps.  But  the  difference  was  adjusted  by  a  concession  of  the  ex- 
treme views  of  each,  resulting  in  a  comj)romise  which  made  the  Constitu- 
tion a  possibility ;  and  indeed  it  may  be  stated  in  this  connection,  as  it  will 
be  illustrated  in  the  course  of  this  narrative,  that  agreement  was  only  pos- 
sible on  that  principle  of  give  and  take  obtaining  in  international  confer- 
ences, and  that  the  Constitution  itself  is  the  very  creature  of  compromise  and 
concession.  The  necessary  spirit  of  concession  was  perhaps  best  stated  by 
Mr.  John  Langdon  of  New  Hampshire,  whom,  apropos  of  the  Militia  clause 
in  the  proposed  Constitution.  Mr.  Madison  reports  as  follows : 

M'.  Langdon  said  He  could  not  understand  the  jealousy  expressed  by  some 
Cientleman.  The  General  &  State  Gov",  were  not  enemies  to  each  other  hut 
different  institutions  for  the  good  of  the  people  of  America.  As  one  of  the 
people  he  could  say.  the  National  Gov',  is  mine,  the  State  Gov',  is  mine  — 
in  transferring  power  from  one  to  the  other  —  I  only  t.-.ke  out  of  my  left 
hand  what  it  cannot  so  well  use,  and  put  it  into  my  right  hand  where  It  can 
be  better  used.' 

The  plan  provided  for  a  national  legislature  of  two  houses,  the  first  and 
the  second,  which,  in  the  completed  instrument  appear  as  the  Congress,  con- 
sisting of  a  House  of  Rq)resentatives  and  a  Senate,  the  first  representing 
the  people  of  the  States  according  to  their  population,  the  second  the  States 
or  the  people  within  the  States,  and  in  which  each  is  represented  by  two 
Senators,  voting  as  individuals,  not  as  delegates  casting  their  vote  under  direct 
and  specific  instructions  of  the  State  or  the  citizens  thereof.  There  was 
practically  no  objection  to  the  bicameral  system,  although  Pennsylvania,  ap- 
parently influenced  by  Dr.  Franklin's  preference  for  a  single  chaml)er,  pro- 
posed it,  only  to  have  it  rejected.* 

Nor  was  there  any  great  opposition  to  the  powers  with  which  each  of 

'  Dorumentary  History  of  the  Coiistilulwn.  Vol    iii    p   597 
^,r  "*"'.•'•'  Rffoliition  'that  the  national  Legislature  ought  to  consist  of  two  branches' 
was  asreed  to  w;ithout  .lebate  or  dissent,  except  that  of  Pennsylvania  r  ven  pTol.ahlv   from 

is°a;ion.""'/L!(!  K.  "■"'  "■"  ""''""°°''  '^  ^  P*'"*'  "'^  '-ngle  House  of  U^ 

172 


CIEATION   OP  THE   FEDERAL   LEGISLATUUt 


173 


thfse  branches  was  to  he  vested.  These  were  iinleed  important  matters,  hut 
they  were  rather  cjuestions  of  detail,  after  agreement  upon  the  principle,  and 
until  that  principle  was  accepted,  a  Constitution  of  the  kind  proposed  by  the 
Virginian  plan  was  impossible.  This  principle  was  that  the  first  branch 
should  not  merely  Iw  elected  by  the  people  of  the  several  States  but  that  the 
right  of  suffrage  in  the  national  legislature  ought  "  to  l)e  proportioned  to 
the  f|uotas  of  contributif)n  or  to  the  numl)er  cf  free  inhabitants."  It  was 
provide*!  in  the  fifth  rcsohuion  that  the  meml>ers  of  the  second  branch  "  ought 
to  lie  elected  by  those  of  the  first,  out  of  a  proper  numljcr  of  persons 
nominated  by  the  individual  Legislatures."  ' 

There  was  little  or  .10  opposition  to  the  election  of  the  first  branch  by 
the  people  of  each  and  every  State,  and  after  no  great  liiscussion  Mr. 
Dickinson's  motion  was  accepted  on  June  7th,»  that  the  members  of  the  second 
branch  should  be  elected  by  the  legislatures  of  the  respective  States,  thus 
providing  the  basis  for  the  compromise  that  the  first  branch  should  repre- 
sent the  people  of  the  States  as  such,  the  second  branch  the  States.  The 
instructions  of  the  State  of  f^laware.  however,  blocked  the  way.  for  although 
they  did  not  prevent  a  double  chamljcr,  if  the  convention  should  think  such 
a  system  desirable.  the\  forliade  the  delegates  of  that  State  from  accept- 
ing a  system  in  which  e  States  should  not  have  an  equal  vote.  This  op- 
position was  brought  t.  a  head  by  Mr.  Madison,  who  moved,  on  Mav  30th. 
the  first  session  in  which  the  plan  was  discussed,  "  that  the  equality  of 
suffrage  established  by  the  articles  of  Confederation  ought  not  to  prevail  in 
the  National  legislature,  and  that  an  erjuitable  ratio  of  representation  ought 
tit  be  siUwtituted."  * 

It  does  not  need  to  be  recalled  that  Mr.  Madison  represented  the  large 
State  of  \irginia.     In  view  of  the  di>tu»i  ,n  of  the  matter  of  equality  be- 
tween members  of  that  delegation  and  n(  I'.-nns' 
of  the  convention,  it  was  to  lie  expected  '  uit  M^ 
bv  a  memlier  of  that  delegation,  and  it  was,  ver\ 
Morris,  who  had  rai.-ed  the  question.     Mr.   Ma.i 
motion,  says  that  it  was  "  generally  relished     a; 
agreed  to ;  when, 

Mr.  Reed  moved  that  the  whole  clause  rela 
tion  be  postponed :  reminding  the  Com*,  that  tli 
restrained  by  their  comission  from  assenting  i. 
suffrage,  and  in  case  such  a  change  should  be  tixt, 
duty  to  retire  from  the  Convention.* 

'  Pncumenlary  History,  Vol.  iii.  o.  17. 
'  IhiJ.,  p.  87. 
'  /'•»/..  p.  24. 
*lh:d. 


Questiona 
of  Rcpre* 

ania  before  the  opening  ""'"'on 
KlrMin  would  lie  seconded 
•ropriately  by  Gouverneur 
■n.  commenting  upon  his 

lat  it  "  \'     iki  have  beert 


"  lilt  of  Representa- 

rom  Dclnwari  'vore 

ange  of  the  ruk   of 

It  might  become  their 


174 


THE    I  NliW)  JtlAlts;    A   SlLliV    IN    INTEHNATIONAL  Uili;ANIZATIUN 


I  argr  tint 
!>m«ll  Sialu 


Hn 


After  some  observations  of  a  fj^eneral  nature,  Mr.  Read's  motion  to  post- 
pone prevailed,  it  being  tmderstooil,  according  to  Mr,  Madison,  that  at  most 
the  State  of  l)clft,vare  would  withdraw  if  this  provision  of  the  Virginian 
jilan  were  agreed  to. 

It  is  to  \k  feared  that  Mr.  Madison,  as  a  rcpre  .'ntativc  of  the  large 
Stales,  was  oversan^ruinc  in  this,  as  the  experience  of  the  convention,  as 
wtll  as  of  other  inteniatiotml  conferences,  shows  that,  atthougli  little  States 
may  not  carry  their  |x>ints  against  ihc  large  ones,  they  can  by  uniting  their 
forces  nevertheless  prevent  the  larger  States  from  working  their  will  to  the 
det'iment  of  the  smaller. 

It  is  not  material  to  the  present  purpose  to  state  in  detail  the  arguments 
advanced  by  the  delegates  of  the  larger  States  in  supfiort  of  proportional 
representation,  or  to  describe  the  generous  seiuiments  in  which  they 
abounded,  and  the  expressions  of  lieliel  on  their  part  that  the  rights  of  the 
smaller  States  would  Ije  sutticicntly  safeguarded  by  such  an  arrangement. 
Nor  is  it  material  to  summarize  the  views  of  the  small  States,  insisting  upon 
an  equality  of  right  arising  fro«  i  the  fact  that  thev  were  States  and  from 
their  suffering  in  a  common  cause,  in  which  they  had  contributed  their 
mite,  in  any  case  their  all.  .vir.  Madison  himself,  in  an  elaborate  argu- 
ment on  June  19th.  stated  it  all  in  a  nut-shell  when  he  said  that  "  The  great 
ditVicultv  lies  in  the  affair  of  Representation;  and  if  this  could  lie  adjusted, 
all  others  would  Ix;  surmountable.  It  was  admitted  by  Ixith  the  gentlemen 
from  X.  Jersey  ( Mr.  Brearly  and  Mr.  PattersoiO  that  it  would  not  lie  just  to 
allow  I'irif.  which  was  16  times  as  large  as  Delaware  an  equal  vote  only. 
Tlu'ir  language  was  that  it  would  not  l)e  safe  for  Pchmarc  to  allow  Virg*. 
16  times  as  many  votes.  The  expedient  proposed  bv  them  was  that  all  the 
States  should  Ik;  thrown  into  one  mass  and  a  now  partition  l)e  made  into  13 
equal  parts."  ' 

The  fear  of  the  small  States  to  Ik>  al)sorl)cd  into  the  larger  or  deprived 
of  their  influence,  and  the  unwillingness  of  the  large  States  to  Ix;  reduced 
to  an  c<|ti;ility.  as  proposed  l)y  the  small  "  frv."  led  to  a  readjustment  of  the 
views  of  both,  and  it  is  desirable  to  consider  the  steps  bv  which  this  compro- 
mise was  reached.  The  dissati-fnction  of  the  delegates  of  the  smaller  States 
with  the  national  |)lan  was  evident  from  the  moment  of  its  introduction,  but, 
as  in  international  conferences,  thiy  allowed  themselves  to  Ik:  rushed  along 
until,  after  conference  among  .hemsclves,  thev  mij,'ht  hit  upon  a  plan  of 
their  own,  which  would  unite  them  it.  opposition  to  the  resolutions  sought 
to  t)e  imposed  Ujxm  them.  In  this  p.irticular  case  there  was  a  reason  for 
delav  not  ordinarily  present  in  iiuernational  conferences,  in  that  the  dele- 
g.ites  of  all  the  States  had  not  appeared,  including  some   from  the  lesser 

'  !>■  ctimenliiry  History,  Vol.  iii.  pp.  160-1. 


CREATION   OK   THE   HOKN  M.   LEGISLATim  \7S 

Stales  who  rnuld  lie  counted  upoti.     T»s„  States  were  not  reprisentcfl  at  all 
m  the  earlier  sessions,  and  it  uas  lelt  that,  if  N'ew  Hampshire  and  kh.  .je 
Island  should  ap|)ear.  they  could,  as  small  .States.  Iw  relied  u|X)n  as  memlx:rs 
of  the  opposition.     It  was  hruited  al.road  that  .\cw  Hampshire  would  1«  rep- 
resented.    On  June  27th  its  dclcKates  were  apix.intitl.  although  thev  attended 
for  the  first  time  nearly  a  month  later,  on  July  2id.     So  certain  were  the 
small  States  of  N'ew  1  lampshirc.  that.  duriiiK  the  session  of  June  JOth.  in 
the  heat  of  delate  on  the  (|uesti.m  of  equality.  .Mr.  llrearly  of  .\cw  Jersey 
moved,  according  to  Mr.  Madison.  "  that  the  I'resid'.  write'to  the  Executive 
of  X.  Ilamshire.  informing  it  that  the  husiness  depending  liefore  the  Con- 
vention was  of  such  a  nature  as  to  re<|uire  the  immediate  attendance  of  the 
deputies  of  that  State.     In  support  of  his  motion  he  observed  that  the  diffi- 
culties of  the  subject  and  the  diversity  of  opinions  called  for  all  the  assist- 
ance we  could  possibly  obtain."  >     This  apparently  was  the  reason  advanced 
by  Mr.  Brearly.     The  reason  undoubtedly  uppermost  in  his  mind  is  thus 
added  by  Mr.  Madison  in  partnhesis  by  way  of  comment: 

^  It  was  well  understood  that  the  object  was  to  add  X.  Hamshire  to  the 
n  .  Of  htates  opposed  to  the  doctrine  of  proportional  rcpresemation,  which  it 
was  presumed  from  her  relative  size  she  must  be  adverse  to. 

Mr.    Patterson   of    New   Jersey,    the   proposer   of   the    small    State   plan, 
seconded  the  motion.     Mr.   Rutledge  of  South  Carolina,  which  ranged  it- 
self with  the  large  States,  "could  see  neither  the  necessity  nor  propriety  of 
such  a  measure.     They  are  not  unapprizcd  of  the  meeting,  and  can  attend 
If  they  choose.     Rho.    Island  might  as  well  he  urgerl  to  appoint  &  send 
deputies.     .Are  we  to  suspend  the  business  until  the  deputies  arrive?  if  we 
proceed  ''e  hoped  all  the  great  points  would  he  adjusted  l)efore  the  letter 
could  produce  its  effect."     Mr.   King,  then  of  Massachusetts  and  later  of 
New  York.  Senator  of  that  State.  Minister  to  F.ngland  and  candidate  of 
the  Federalist  party  for  President,  said  "  he  had  written  more  than  onco 
as  a  private  correspondent.  &  the  answers  gave  him  every  reason  to  expect 
that  State  would  be  represented  verv-  shortly,  if  it  sh^  be  so  at  all.     Cir- 
cumstances of  a  personal  nature  had  hitherto  prevented  it.     .\  letter  c".  have 
no  eflfect."     Mr.  Wilson  of  Pennsylvania,  likewise  one  of  the  large  States. 
"  wished  to  know  whether  it  would  be  consistent  with  the  rule  or  reason  of 
secrecy,  to  communicate  to  X.  Hampshire  that  the  business  was  of  such  a 
nature  as  the  motion  described.     It  w".  spread  a  great  alarm.     Besides  he 
doubted  the  propriety  of  solicitating  any  State  on  the  subject ;  the  meeting 
being  merely  voluntary." 

Admitting  that  these  reasons  were  well  taken,  it  is  to  be  observed  that 

>  Documrntary  History.  Vol.  iii,  p.  247. 


f.'t'.uhljp 
0(  M»IH 


I  i 


i  I 


176  THE   UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 


*?hr 


■Wf- 


the  motion  was  made  by  a  delegate  oi  the  State  of  New  Jersey  and  seconded 
by  a  delegate  of  that  State,  and  that  all  objections  to  the  proposed  course 
of  action  were  made  by  delegates  of  the  larger  States,  who  hoped,  as  Mr. 
Rutledge  bluntly  put  it,  that  "  all  the  great  points  would  be  adjusted  be- 
fore the  letter  could  produce  its  effect."  Rhode  Island,  which  undoubtedly 
would  have  voted  with  the  smaller  States,  was  not  represented,  and  on 
June  11th,  Abraham  Baldwin  of  Georgia,  which  State  usually  voted  with 
the  larger  ones,  arrived.  And  it  is  worth  while  mentioning  that  he  was 
a  native  of  Connecticut,  as  was  Oliver  Ellsworth,  a  member  of  the  conven- 
tion from  that  State,  who  preferred  to  call  it  a  middle  rather  than  a  small 
State.  It  is  also  noteworthy  that  Luther  Martin  of  Maryland  was,  like 
Mr.  Ellsworth,  a  graduate  of  Princeton  College,  and  that  both  were 
partisans  of  equality.  For  whatever  reason,  Mr.  Baldwin's  vote  on  July 
2d  in  favor  of  equality  neutralized  the  vote  of  his  colleague  against  it.*^ 
With  Georgia  thus  eliminated  as  a  State,  since  it  voted  neither  in  favor  of 
nor  against  eqrality,  the  convention  divided,  five  States  for  and  five  States 
against,  which  fact  inclined  the  minds  of  the  large  States  to  compromise. 

Other  memljers  had  privately  done  as  Mr.  King  said  he  had  done,  and 
on  the  9th  of  June,  when  Luther  Martin,  the  champion  of  equality,  took 
his  seat,  Mr.  P. ready.  Chief  Justice  of  New  Jersey,  wrote  to  Jonathan  Dayton, 
urging  his  presence,  saying  that  "  We  have  been  in  a  Committee  of  the 
Whole  for  some  time,  and  have  under  consideration  a  number  of  very  im- 
portant propositions,  none  of  which,  however,  have  as  yet  been  reported. 
My  colleagues,  as  well  as  myself,  are  very  desirous  that  you  should  join  us 
immediately.  The  importance  of  the  business  really  demands  it."  And  it 
did." 

On  the  13th  the  Committee  of  the  Whole  reported  the  Randolph  plan, 
amending  and  expanding  the  original  fifteen  to  nineteen  articles.  The  con- 
vention was  ready  to  take  them  up  and  would  doubtless  have  done  so  on 
the  morrow  had  not  the  smaller  States  then  felt  themselves  sufficiently  strong 
to  take  the  initiative.  Therefore,  when  the  convention  met  on  June  14, 
1787,  Mr.  Patterson  of  New  Jersey,  to  quote  Mr.  Madison's  Notes,  observed 

'  "  It  was  Georgia  that  had  changed.  Her  vote,  hitherto  regularly  given  to  the  majority 
was  this  time  divided.  It  was,  in  fact,  one  man  only  that  had  changed,  and  that  man  was 
Abraham  Ualdwin,  a  native  of  Conm-cticut,  a  graduate  and  sometime  tutor  of  Yale,  and  but 
reccnily  become  a  citizen  of  the  state  which  he  now  sat  for.  The  facts  countenance  a  con- 
jecture that  the  personal  influence  of  the  throe  leading  men  of  his  native  state  may  have 
helped  to  turn  him ;  but  he  may  also  have  felt,  as  Georgia  was  the  last  state  to  vote  and  had 
but  two  represintativcs,  that  he  and  his  colleague  had  to  decide  whether  the  convcntii'ti 
should  continue  in  existence.  He  had  said  that  he  thought  the  second  branch  ought  to  be 
an  aristocratic  body,  and  his  votes,  both  before  and  after  this  pa.  cicular  division,  show  that 
he  was  favorable  to  the  national  view.  The  chances  are  that  to  save  the  convention  he  \.a<\ 
for  the  time  being  sacrificed  his  own  opinions."  VV.  G.  Brown,  The  Life  of  Oliver  Elisxi'orlh 
p.  144. 

y.  R  Jameson    Studies  in  the  History  of  the  Federal  Convention,  in  the  Annual  Report 
of  the  American  Historical  Association  for  1902,  p.  98. 


CREATION   OF  THE  FEDERAL  LEGISLATURE 


177 


'  that  it  was  the  wish  of 


several  deputations,  particularly  that  of  N.  Jersey, 
that  further  time  might  be  allowed  them  to  contemplate  the  plan  reported  from 
the  Comni.ttee  of  the  Whole,  and  to  digest  one  purely  federal,  and  contra- 
distmguished  from  the  reported  plan.     He  said  they  hoped  to  have  such  an 
cne  ready  by  tomorrow  to  be  laid  before  the  Convention:  and  the  Con- 
vention adjourned  that  leisure  might  be  given   for  the  purpose."  >     Mr 
Madison  in  later  years  added  a  comment  to  his  notes,  stating  that  "  The 
eagerness  displayed  by  the  members  opposed  to  a  Nat'.  Gov',  from  these 
different  motives  began  now  to  produce  serious  anxiety  for  the  result  of 
the  Convention.       M'.  Dickenson  said  to  M'.  Madison  You  see  the  con- 
sequence  of  pushing  things  too  far.     Some  of  the  members  from  the  small 
States  wish  for  two  branches  in  the  General  Legislature,  and  are  friends  to 
a  good  National  Government;  but  we  would  sooner  submit  to  foreign  power 
than  submit  to  be  deprived  of  an  equality  of  suffrage  in  both  branches  of  the 
legislature,  and  thereby  be  thrown  under  the  domination  of  the  large  States  "  » 
On  the  15th  Mr.  Patterson  presented  his  plan,  which,  he  said    "several 
of  the  deputations  wished  to  be  substituted  in  place  of  that  proposed  bv  Mr. 
Kandolph."     After  discussion  it  was  decided  that  it  should  be  laid  before 
the  Committee  of  the  Whole,  that  Mr.  Randolph's  plan  should  be  recom- 
mitted in  order  that  the  two  should  be  compared,  and  the  convention  like- 
wise decided  that  It  should  not  go  into  the  Committee  of  the  Whole  until 
the  day  following,  in  order  that  the  friends  of  the  Patterson  plan  should 
be  the  better  prepared  to  explain  and  support  it  and  the  member,  of  the 
convention  have  the  opportunity  of  providing  themselves  with  copies.     There- 
upon, Mr.  Patterson  moved  nine  resolutions,  proposing 

_      1.  That  the  Articles  of  Confederation  be  "  revised,  corrected  &  enlarged."  The  nw 
in  order  to  render  them  "adequate  to  the  exigencies  of  Government   &  the  ^"'"'"' 
preservation  of  the  Union." 

2.  That  in  addition  to  the  powers  already  possessed,  the  United  States 
in  Congress  assembled  be  authorized  to  raise  revenue  and  to  expend  it  for 
federal  purposes  by  duties  imposed  on  imports,  stamps  upon  paper  and  letters 
and  packages  passing  through  the  general  post-office:  to  regulate  commerce 
with  foreign  nations  and  with  the  States:  also  that  suits  for  the  violation 
of  any  such  regulations  be  brought  in  the  State  courts  with  an  appeal  in  law 
and  fact  to     the  Judiciary  of  the  U.  States." 

3.  That  requisitions  upon  the  States  be  made  in  proportion  to  the  number 
of  white  and  other  free  citizens,  including  inhabitants  bound  to  .servitude 
for  a  term  of  years  and  "  three  fifths  of  all  other  persons  .  .  .  except  Indians 

I  Q<;'ci'mentary  History.  Vol.  iii.  p.  123 

-  The  Journal  of  the  Debates.  Gaillard  Hunt  ed..  Vol.  i,  p.  138  note. 


I    1 


178 


THE   UNITED  STATES:   A  STUDY  IN   INTERNATIONAL  ORGANIZATION 


14- 


T^' 


,.    'A 


not  paying  taxes  " ;  provided,  however,  that  the  consent  of  States 

be  required  for  the  exercise  and  enforcement  of  these  powers. 

4.  That  a  federal  Executive  be  elected  to  consist  of  persons 
for  a  single  term  of  years,  to  receive  rompensation  for  services 
not  to  be  increased  or  diminished  during  the  term  of  office,  and  subject  to 
removal;  that  this  Executive  be  authorized  to  carry  out  federal  acts,  to  ap- 
point federal  officers  not  otherwise  provided  for,  and  to  direct  military 
operations,  without,  however,  commanding  the  army  or  navy. 

5.  That  a  federal  Judiciary  be  established  to  consist  of  a  supreme  tribimal 
composed  of  judges  ineligible  for  other  positions  during  service,  appointed 
by  the  Executive  to  serve  during  good  behavior,  receiving  fixed  compensa- 
tion not  subject  to  increase  or  diminution,  possessing  the  jurisdiction  in 
first  instance  of  cases  of  impeachment  of  federal  officers,  and  in  dernier 
ressort  of  appeals  in  international  matters  affecting  ambassadors,  captures 
from  the  enemy,  piracies  and  felonies  committed  on  the  high  seas,  cases  in- 
volving foreigners,  and  the  construction  of  treaties,  "  or  which  may  arise  on 
any  of  the  Acts  for  regulation  of  trade,  or  the  collection  of  the  federal 
Revenue." 

6.  That  the  acts  of  the  Congress  in  accordance  with  the  original  and 
revised  .Articles  of  Confederation,  and  treaties  made  and  ratified  under  the 
authority  of  the  United  States,  be  the  supreme  law  of  all  the  States,  insofar 
as  such  acts  or  treaties  relate  to  the  citizens  of  the  States,  that  the  Judiciaries 
be  lx)und  thereby  "  any  thing  in  the  respective  laws  of  the  individual  States 
to  the  contrary  notwithstanding,"  and  that  the  federal  Executive  be  author- 
ized to  use  the  power  of  the  States  "  to  enforce  and  compel  an  Obedience 
to  such  .Acts,  or  an  observance  of  such  Treaties." 

7.  That  "  provision  be  made  for  the  admission  of  new  States  into  the 
Union." 

8.  That  naturalization  be  uniform  in  every  State. 

9.  and  last.  That  offenses  committed  in  one  State  be  tryable  in  any 
other  State  of  the  Union.* 

It  will  be  observed  that  this  plan,  although  recognizing  the  threefold  divi- 
sion of  powers,  is  nevertheless  to  be  looked  upon  as  a  revision  of  the  Articles 
of  Confederation,  with  important  additions,  not  as  a  substitute  for  them. 
It  was  vigorously  debated  but  it  found  little  favor  with  the  partisans  of 
the  national  plan,  or  indeed  with  those  desiring  to  provide  the  Union  with 
an  adequate  government,  while  preserving  the  rights  of  the  States.'    On  the 

>  Documentary  History,  Vol.  iii,  pp.  125-8. 

'In  the  session  of  .\uRust  2.W  the  question  of  (granting  power  to  negative  State  legisla- 
tion was  revived  by  a  motion  of  Mr.  Pinckncy.  The  diverging  views  of  two  delegates,  as 
reported  by  Mr.  Madison,  are  of  interest : 

Mr.  Wilson   considtrcd  this  as  the  keystone  wanted  to  compleat  the  wide  arch  of 
Government  we  are  raising.    The  power  of  self-defence  had  been  urged  as  necessary  for 


f  4\ 


CREATION   OF  THE  FEDERAL  LEuISLATURE 


179 


I  i 


I 


19th  of  June  It  was  moved  by  M'.  Kinjr  of  Massachusetts  "whether  the 
Comittee  should  rise  A-  >r'.  Randolphs  propositions  be  re-reported  without 
alteration.  \vl,ich."  as  Mr.  Madison  savs.  "  was  in  fact  a  question  whether  M'. 
R  s  should  be  adhered  to  as  preferable  to  those  of  M'.  Patterson  " ; '  on  which 
question  the  States  divided  as  follows:  ^rassachusetts,  aye:  Connecticut, 
aye:  New  York,  no;  New  Jersey,  no:  Pennsvlvania.  aye:  Delaware,  no; 
Maryland,  divided;  Virginia,  aye;  North  Carolina,  aye;  South  Carolina, 
aye .  Georgia,  aye. 

The  Randolph  plan,  as  amended  and  altered  in  the  committee,  was  there- 
fore reported  to  the  convention  and  ser\ed  as  the  basis  of  future  discus- 
sion. The  New  Jersey  plan,  however,  had  served  its  turn.  It  had  united 
the  advocates  of  the  States  and  made  it  clear  that  either  Mr.  Randolph's  plan 
would  prevail  or  that  a  compromise  would  have  to  be  reached  on  middle 
ground.  The  attitude  of  the  smaller  States  was  accurately  but  somewhat 
brutally  put  by  Mr.  Pinckney.  who  is  made  by  Mr.  Madison  to  say  that 
"  the  whole  comes  to  this,  as  he  conceived.  Give  N.  Jersey  an  equal  vote, 
and  she  will  dismiss  her  scruples,  and  concur  in  the  Xati'.  system."  * 

The  Patterson  plan  as  a  whole  out  of  the  way.  the  discussion  turned  on 
the  Randolph  resolutions  as  modified  in  such  a  way  as  to  give  the  States  an 
equal  representation  in  the  scn^nd  branch.     The  foundation  had  already  been 
laid   for  this  compromise  by  John  Dickinson  of  Delaware,  the  possibility 
of  such  a  solution  adverted  to  by  Roger  Sherman  of  Connecticut,  and  with- 
out attributing  either  the  origin  or  the  success  of  the  project  to  the  repre- 
sentatives of  any  State  or  any  one  person,  the  delegation  of  the  State  of 
Connecticut,  which  Oliver  Ellsworth  declared  to  be  not  a  small  but  a  middle 
State,  seems  to  have  occupied  what  may  Ije  called  the  strategic  position. 
The  conciliatory  attitude  of  its  members  seemed  inclined  to  produce  concilia- 
tion, and  from  here  on  until  the  acceptance  of  the  principle  of  equality  Mr. 
Ellsworth  seems  to  ha\e  played  the  leading  riMe.     Certain  it  is  that  the 
members  of  the  Connecticut  delegation  not  only  assumed  leadership  and 
stated  their  views  in  such  a  way  as  to  court  concession  from  the  larger 
States  !)y  showing  themselves  prepared  to  yield  proportional  representation 
m  the  first  branch,  but  Mr.  Ellsworth's  motion  of  the  29th  of  June  "  that 
the  rule  of  suffrage  in  the  2^.  branch  be  the  same  with  that  established  by 
the  articles  of  confederation," »  divided  the  States  equally  in  the  session  of 

fi'^/mnl'^"  p?^7"'"^"<s-It  was  equally  necessary  for  the  General   Government     The 

firmne.s  of  J,„lses  is  not  of  itself  sufficient It  will  he  better  to  prevent  the  nassiee 

of  an  miproper  law.  .han  to  declare  it  void  when  passed  preAent  tne  passage 

stit^l^-^ran^'^^aJ^'-e^'^'t^TCii'  h^YCt'\^-   t^V^^  ^^l 
» lbi(i.,  p.  162. 


I*    i  I 

i 


The 

Connecticut 

Propowl 


:  !!.;.! 


136. 


3  Ibid.,  p.  245. 


180 


THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


'^     '*' 


July  2d.  leading  to  the  appointment  of  a  committee  of  one  from  each  State 
to  find  a  way  out.  This  Committee  of  the  States  reported  on  July  Sth  the 
compromise  ultimately  adopted,  that  the  principle  of  proportional  representa- 
tion should  prevail  in  the  first  branch;  that,  in  the  second,  each  State  should 
have  an  equal  vote,  with  the  further  provision  that  revenue  bills  should 
onerinrite  in  the  first  branch  and  should  not  be  altered  or  amended  in  the 
sc  1.  \  -hich  latter  provision  was  changed  in  the  course  of  debate  by  per- 
mitunR  the  Senate  to  alter  but  not  to  originate  money  bills.  Or.  as  stated 
more  at  length  in  the  report  of  Mr.  Gerry,  on  behalf  of  the  Committee: 

That  the  subsequent  propositions  be  recommended  to  the  Convention  on 
condition  that  both  shall  be  generally  adopted.  I.  that  in  the  1-  branch  of 
the  Legislatureeach  of  the  States  now  in  the  Union  shall  be  allowed  1  member 
for  every  40.000  mhabitants  of  the  description  reported  in  the  T-"  Resolu- 
nZ^  uur\°^  the  whole  House:  that  each  State  not  containing  that 
number  shall  be  allowed  1  member:  that  all  bills  for  raising  or  appropriating 
money,  and  for  fixing  the  Salaries  of  the  officers  of  the  Govern'  of  the  U 
states  shall  originate  in  the  1"  branch  of  the  Legislature,  and  shall  not  be  al- 
♦t  m'"^^"  ^  ^^"^  ^  branch:  and  that  no  money  shall  be  drawn  from 
trie  public  1  reasury,  but  in  pursuance  of  appropriations  to  be  originated  in  the 
I    branch     11.  That  in  the  2^  branch  each  State  shall  have  an  equal  vote.' 

In  the  session  of  the  25th  of  June.  Mr.  Ellsworth  urged  "  the  necessity  of 
maintaining  the  existence  &  agency  of  the  States.  Without  their  co-operation 
It  would  be  impossible  to  support  a  Republican  Gov',  over  so  great  an  extent 
of  Country."  2  Dr.  Johnson  of  Connecticut  likewise  urged  "the  necessity 
of  preserving  the  State  Gov".— which  would  be  at  the  mercy  of  the  Gen'. 
Gov',  on  Mr.  Wilson's  plan";  and  on  the  question  to  agree  "that  the 
members  of  the  2"  branch  be  chosen  by  the  individual  Legislatures,"  nine 
States  voted  in  its  favor,  with  Pennsylvania  and  Virginia  in  the  negative. 

Th;is,  Mr.  Dickinson's  original  motion,  which  laid  the  basis  for  the 
compromise,  was  reaffirmed  for  the  reason  stated  by  Mr.  Madison  in  a  note 
that  "  the  largest  States  particularly  Pennsylvania  &  Virginia  always  con- 
sidered the  choice  of  the  2"  Branch  by  the  State  Legislatures  as  opposed  to 
a  proportional  representation  to  which  they  were  attached  as  a  fundamental 
principle  of  just  Government.  The  smaller  States  who  had  opposite  views 
were  reinforced  by  the  members  from  the  large  States  most  anxious  to  secure 
the  importance  of  the  State  Governments."  * 

In  reply  to  an  elaborate  and  somewhat  theoretical  disquisition  on  gov- 
ernment by  Mr.  Madison  in  the  session  of  the  28th,  Mr.  Sherman  of  Con- 
necticut curtly  and  correctly  said : 


The  question  is  not  what  rights  naturally  belong  to  men;  but  how  they 
iii,  p.  270. 

Vol   !.  p.  236  note. 


^Documentary  History,  Vol 

« IbiJ.,  p.  210. 

*  Journal  of  Debates.  Hunt  rd 


CKEATION   OF  THE  FEDERAL   LEGISLATURE 


181 


( 


may  be  most  equally  &  effectually  guarded  in  Society.  And  if  some  give  up  Div,r.it7 
more  than  others  m  order  to  obtain  this  end.  there  can  be  no  room  for  com-  °'  ^''"" 
"  '■"»     To  do  otherwise,  to  require  an  equal  concession  from  all,  if  it  would 


plaint. 


create  danger  to  the  rights  of  some,  would  be  sacrificing  the  end  to  the  means. 
1  he  rich  man  who  enters  into  Society  along  with  the  poor  man,  gives  up  more 
than  the  poor  man,  yet  with  an  equal  vote  he  is  equally  safe.  Were  he  to 
have  more  votes  than  the  poor  man  in  proportion  to  his  superior  stake  the 
rights  of  the  poor  man  would  immediately  cease  to  be  secure.  This  con- 
sideration prevailed  when  the  articles  of  Confederation  were  formed.' 

Matters  had  come  to  such  a  pass  that  Dr.  Franklin,  immediately  after  Mr. 
Sherman's  remarks,  proposed  that  hereafter  the  session  should  open  with 
prayer.  On  the  29th,  Dr.  Johnson  carried  thr  matter  a  step  nearer  agree- 
ment by  a  series  of  timely  and  well  balancjd  remarks: 

The  controversy  must  be  endless  whilst  Gentlemen  differ  in  the  grounds  of 
their  arguments ;  Those  on  one  side  considering  the  States  as  districts  of  peo- 
ple composing  one  political  Society;  those  on  the  other  considering  them  as 
so  many  political  societies.  The  fact  is  the  States  do  exist  as  political  So- 
cieties, and  a  Gov',  is  to  be  formed  for  them  in  their  political  capacity,  as  well 
as  for  the  individuals  composing  them.  Does  it  not  seem  to  follovv,  that  if 
the  btates  as  such  are  to  exist  they  must  be  armed  with  some  power  of  seif- 
detence.  ...  On  the  whole  he  thought  that  as  in  some  respects  the  States 
are  to  be  considered  in  their  political  capacity,  and  in  others  as  districts  of  in- 
dividua  cituens,  the  two  ideas  embraced  on  different  sides,  instead  of  being 
opposed  to  each  other,  ought  to  be  combined ;  that  in  one  branch  the  l^cople. 
ought  to  be  represented,  in  the  other  the  States.^ 

Later,  in  the  same  session.  Dr.  Johnson's  colleague,  Mr.  Ellsworth,  moved 
the  proposition  previously  quoted,  for  equality  of  suffrage  in  the  second 
branch,  in  accordance  with  the  Articles  of  Confederation,  and  in  support  of 
his  motion  he  is  reported  by  Mr.  Madison  to  have  said: 

♦  ^"^  ^J''*"  "•"*  ^"l^  "".  ^^^  '^''"'^  ^^  ^■'''^  *hat  the  vote  just  pas.sed  had  de- 
termined against  this  rule  in  the  first  branch.  ITe  hoped  it  would  become  a 
ground  of  compromise  with  regard  to  the  2".  branch.  We  were  partly  na- 
tional ;  partly  federal.  The  proportional  representation  in  the  first  branch 
%vas  conformable  to  the  national  principle  &  would  secure  the  large  States 
ag-  the  small.  An  equality  of  voices  was  conformable  to  the  federal  pr.n- 
ciple  and  Nvas  necessary  to  secure  the  Small  States  ag«.  the  large.  He  trusted 
that  on  this  middle  ground  a  compromise  would  take  place.  He  did  not  see 
that  It  could  on  any  other  And  if  no  compromise  should  take  place,  our 
meetmg  would  no  only  be  in  vain  but  worse  than  in  vain.  To  the  Eastward 
he  was  sure  Mass",  was  the  only  State  that  ..ould  listen  to  a  proposition  for 

branched  The'^lhlT  '"""m  P"'['''^"'  ■''°^'^''"-'-  ^'""^  «"  ^^ual  voice  in  both 
so  dear  a  rilS  "'f^;;'""''! /'^^  ^very  consequence  rather  than  part  with 
b^dv  of  AmS,-'     :^"/*^^'"Pt  fo  f^^Pnve  them  of  it.  was  at  once  c,  tting  the 

about  thi^nIr?^f'>*"T,,^",^  '"'  "jT  '"PP"""''  "'""'''  ''^  '^^  "^^^  ^onle^fhere 
about  this  part  of  it.     The  large  States  he  conceived  would  notwithstanding 

I  ^"y"""""'"''^  HUtory,  Vol.  iii,  p.  233. 


p.  Iji 


J* 


^1 


182  THE   UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 

the  equality  of  votes,  have  an  influetKe  that  would  maintain  their  superioritv. 
.  .  The  power  of  self  defence  was  essential  to  the  small  States.  Nature  ha"d 
given  It  to  the  smallest  insect  of  the  creation.  He  could  never  admit  that 
there  was  no  danger  of  combinations  among  the  large  States.  They  will 
like  individuals  find  oit  and  avail  themselves  of  the  advantage  to  be  gained 
by  It.  .  .  Let  a  strong  Executive,  a  Judiciary  &  Legislative  fwwer  be 
created ;  but  Let  not  too  much  be  attempted ;  by  which  ali  may  be  lost.  He 
was  not  in  general  a  half-way  man,  yet  he  preferred  doing  half  the  good  we 
could,  rather  than  do  nothing  at  all.  The  other  half  may  be  added,  when  the 
necessity  shall  be  more  fully  experienced.' 

On  the  30th,  Mr.  Ellsworth's  motioi.  being  under  discussion,  its  mover 
thus  replied  to  Mr.  Wilson's  "capita'  objection"  that  the  minority  would 
rule  the  majority: 

The  power  is  given  to  the  few  to  save  them  from  being  destroyed  by  the 
many.  If  an  equality  of  votes  had  been  given  to  them  in  both  branches,  the 
objection  might  have  had  weight.  Is  it  a  novel  thing  that  the  few  should 
have  .1  check  on  the  many?  .  .  .  Xo  instance  of  a  Confederacy  has  existed 
in  which  an  equality  of  voices  has  not  been  exercised  by  the  members  of  it. 
We  are  running  from  one  extreme  to  another.  We  are  razing  the  founda- 
tions of  the  building.  When  we  need  only  repair  the  roof.  No  salutary 
measure  has  been  lost  for  want  of  a  majorfly  of  the  States,  to  favor  it.  If 
security  be  all  that  the  great  States  wish  for  the  f«.  branch  secures  them.  The 
danger  of  combinations  among  them  is  not  imaginary.  .  .  .» 

After  illustrating  the  possibility  of  this  he  appealed,  again  to  quote  Mr. 
Madison.  "  to  the  obligations  of  the  federal  pact  which  was  still  in  force, 
and  which  had  been  entered  into  with  so  much  solemnity,  persuading  him- 
self that  some  regard  would  still  be  paid  to  the  plighted  faith  under  which 
each  State,  small  as  well  as  great,  held  an  equal  right  of  suiifrage  in  the 
general  Councils.  His  remarks  were  not  the  result  of  particular  or  local 
views.     The  State  he  represented  (Connecticut)  held  a  middle  rank."  » 

In  the  course  of  this  debate,  which  was  largely  between  Messrs.  Ells- 
worth and  Madison,  Dr.  Franklin  interposed,  saying: 

The  diversity  of  opinions  turns  on  two  points.  If  a  proportional  represen- 
tation takes  place,  the  small  States  contend  that  their  liberties  will  be  in  dan- 
ger. If  an  equality  of  votes  is  to  be  put  in  its  place,  the  large  States  sav  that 
their  money  will  be  in  danger.  When  a  broad  table  is  to  be  made,  and  the 
edges  of  pl.-jnks  do  not  fit,  the  artist  takes  a  little  from  both,  and  makes  a  good 
joint.     In  like  manner  here  both  sides  must  part  with  some  of  their  demands. 


in  order  that  they  may  join  in  some  accommodating  proposition. 


This  was  indeed  an  olive  branch  from  a  large  State,  and  the  neceLjity  for 
a  compromise,  which  Dr.  Franklin  suggested,  was  made  evident  by  the  re- 

» Documentamc  History,  Vol.  iii,  pp.  245-7. 
» Ibid.,  pp.  251-2. 
'  Ibid.,  p.  252. 
*  Ibid.,  p.  257. 


CREATION   OF  THE   FEDERAL  LEGISLATIRE 


183 


marks  of  Mr.  Bedford  of  Delaware,  who.  to  quote  Mr.  Madison's  report, 
"contended  that  there  was  no  middle  way  between  a  perfect  consolidation 
and  a  mere  confederacy  of  the  States.  The  first  is  out  of  the  question,  and 
in  the  latter  they  must  continue  if  not  perfectly,  yet  equally  sovereign.  If 
political  Societies  possess  ambition,  avarice,  and  all  the  other  pa  ;sions  which 
render  them  formidable  to  each  other,  ought  we  not  to  view  them  in  this  light 
here?  Will  not  the  same  motives  operate  in  .\nierica  as  elsewhere?  If  any 
gentleman  doubts  it  let  him  look  at  the  votes.  Have  they  not  been  dictated 
by  interest,  by  ambition?  Are  not  the  large  States  evidently  seeking  to 
aggrandize  themselves  at  the  expense  of  the  small?  They  think  no  doubt 
that  they  have  right  on  their  side,  but  interest  had  blinded  their  eyes. 
Look  at  Georgia.  Though  a  small  State  at  present,  she  is  actuated  by  the 
prospect  of  soon  being  a  great  one.  S.  Carolina  is  actuated  both  by  present  in- 
terest &  future  prospects.  She  hopes  too  to  see  the  other  States  cut  down  to 
her  own  dimensions.  X.  Carolina  has  the  same  motives  of  present  &  future 
interest.  Virg».  follows.  Mary*,  is  not  on  that  side  of  the  Question.  Pen\ 
has  a  direct  and  future  interest.  Mass",  has  a  decided  and  palpable  interest 
in  the  part  she  takes.  Can  it  be  expected  that  the  small  States  will  act  from 
pure  disinterestedness."  '  After  appealing  to  experience,  Mr.  Bedford  thus 
continued : 

Give  the  opportunity,  am'  ambition  will  not  fail  to  abuse  it.  The  whole 
History  of  mankind  proves  it.  The  three  large  States  have  a  common  in- 
terest to  bind  them  together  in  commerce.  liut  whether  combination  as  we 
suppose,  or  a  competitio.i  as  others  suppose,  shall  take  place  among  them, 
in  either  case,  the  smaller  States  must  be  ruined.  We  must  like  Solon  make 
such  a  Govern',  as  the  people  will  approve.  Will  the  smaller  States  ever 
agree  to  the  proposed  degradation  of  them. 

After  calling  attention  to  the  fact  that  all  were  agreed  that  the  powers  of 
Con{,ress  should  be  enlarged  in  order  that  it  could  meet  its  obligations,  and 
after  adding  that  the  little  States  were  willing  to  comply  with  their  en- 
gagements, but  only  if  the  principle  of  equality  l)e  observed,  he  proceeded 
in  language  which  caused  no  little  commotion  among  the  delegations  on 
behalf  of  the  large  as  well  as  of  the  small  States: 

We  have  been  told  with  a  dictatorial  air  that  this  is  the  last  moment  for  a 
fair  trial  m  favor  of  a  Good  Governm'.  It  will  be  the  last  indeed  if  the  proiio- 
sitions  reported  from  the  Committee  go  forth  to  the  people.  He  was  under 
no  apprehensions.  The  Large  States  dare  not  dissolve  the  confederation. 
If  they  do  the  small  ones  will  find  some  fo.eign  allv  of  more  honor  and  good 
faith,  who  will  take  them  by  the  hand  and  do  them  justice.  He  did  not  mean 
by  this  to  intimidate  or  alarm.  It  was  a  natural  consequence :  which  ouirht 
to  be  avoided  by  enlarging  the  federal  powers  not  annihilating  the  federal 

^  P^cumrnttiry  Hisir-ry,  Vol.  iii.  pp.  259-260. 


^ 


184       THE  ixiTEu  states:  a  study  in  international  organization 

*in!.t"lffi  ^''i'r*  what  the  people  expect.    All  agree  in  the  necessity  of  a 
more  efficient  Gov*,  and  why  not  make  such  an  one ;  as  they  desire. 

Whereupon  Mr.  Ellsworth,  in  a  more  conciliatory  and  persuasive,  yet  hardly 
less  decided  way,  said: 

remaitd  hv'''<*Mr"l!-^°f  k'''  'u""'''  P^^i^^iP"'*^  '"  'he  National  Security,  as 

haoniness    \hJ  \«^"!?^  ^"'  "}",*  ^■'^''"•     "f"'^^'  ''^  ^'^'^'^  ^^^  domestic 
happiness.    The  Nat .  C.ov'.  could  not  descend  to  the  local  objects  on  which 

S,  fr"t''-    Y  '°  u'*^  "°'  '"'^'''"  "^'^''''  «f  »  K^""»'  "^''ure. '  I le  turned  S 
eyes  therefore  for  the  preservation  of  his  rights  to  the  State  Gov".  Trom 

h.nn*in«r !.      '"T'''  "^"u^  ^^'^  .«"''**^''  happiness  he  expects  in  this  life.     His 
mnTr      ''*^P*"*"^°"  their  existence,  as  much  as  a  n^-bom  infant  on  its 

ZlinL  .    ^".T"''""'"?!  .  "   ""'"  reasoning  was  not  satisfactory,  he  had 
nothing  to  add  tha:  could  be  so.' 

Under  these  circumstances,  the  convention  adjourned  on  Saturday.  June 
30th.  .md  after  an  interval  of  a  dav  in  which  to  rellect.  met  on  lulv  2d.     The 
Sunday  was  indeed  a  godsend  to  the  small  States,  for  when  the  Convention 
adjourned  on  Monday.  July  2d.  the  vote  upon  Mr.  Ellsworth's  motion  was 
had.    resulting    m    a    tie.    Massachusetts.    Pennsylvania.    Virginia.    North 
Carolina,  and  South  Carolina  voting  against.  Connecticut.  New  York  (then 
considered  one  of  the  smaller  States).  New  Jersey.  Delaware,  and  Marv- 
hmd  voting  for.  with  Georgia  divi.led.     Mr.  Ellsworth's  friendship  with  Mr 
Baldwin    had   borne   its    fruit.     Whereupon.    General   Charles    Cotesworth 
F  inckney.  a  man  of  large  experience  and  of  broad  views,  although  as  set 
upon  the  rights  of  his  State  as  any  man  could  l,e.  said  that  "  .some  compro- 
mise seemed  to  1^  necessary:  the  States  l,eing  exactly  divided  on  the  n„es- 
t.on  for  an  eciualitv  of  votes  in  the  2'.  branch.     He  proposed  that  a  Com- 
mittee consisting  of  a  meml»er  from  each  State  should  be  appointed  to  de- 
yise  &  report  .some  compromise."  - 

Doubtless  General  Pinckney's  motion  appealed  to  the  good  sense  of  his 
colleagues  open  to  conviction,  for.  as  Mr.  Sherman  said,  the  Convention 
Mas  now  at  a  full  stop,  and  nolxidy  he  supposed  meant  that  we  sh-  break 
up  without  doing  something.  .\  Committee  he  thought  most  likely  to  hit 
on  some  expedient.-  Dr.  Williamson  of  North  Carolina,  whose  siate  had 
vo.e,l  against  e<,uality.  added  thai  "  If  we  do  not  concede  on  both  sides,  our 
business  mu.st  soon  be  at  an  end."  He  favored  the  commitment.  "  supposing 
that  as  the  Com',  w-.  1*  a  smaller  Ixxly.  a  compromi.se  would  be  pursued 
with  more  coolness."^  Mr.  Gerry  of  Massachusetts,  later  to  be  Vice  Presi- 
dent with  Mr.  Madison  as  Presi.Ient  of  the  United  States,  likewise  was  for 
the  commitment,  saying.   "Something  must  be  done,   or  we  shall  disap- 

i  Documentary  History,  Vol.  iii,  p.  261 

'  /rut.,  p.  264. 

»  Jhid. 

*  JtiiJ..  p.  2(18. 


CREATION   or  THE  FEDERAL   LEGISLATURE 


185 


point  not  only  America,  but  the  whole  world."  He  suggested  a  considera- 
tion of  the  state  "  we  should  be  thrown  into  by  the  failure  of  the  Union.  We 
should  be  without  an  Umpire  to  decide  controversies  and  must  l)e  at  the 
mercy  of  events.  What  too  is  to  become  cf  our  treaties  —  what  of  our 
foreign  debts,  what  of  our  domestic?  We  must  make  concessions  on  Ixjth 
sides.  Without  these  the  constitutions  of  the  several  States  v  ,juld  never  have 
been  formed."  ' 

So  the  question  was  debated,  decided  in  the  affirmative,  and  the  com- 
mittee, elected  !)>•  Iwllot,  consisted  of  Messrs.  (ierry.  Ellsworth.  Yates.  Patter- 
son. Franklin.  Bedford.  Martin  (of  Maryland),  ^iason.  Davie.  Rutledge.  and 
Baldwin.  "  That  time  might  l)e  given  to  the  Comittcc.  and  to  such  as  chose 
to  attend  to  the  celebration  on  the  anniversary  of  Independence,  the  Conven- 
tion adjourned  till  Thursday." ' 

On  Thursday.  July  5th.  the  committee  reported  the  compromise  whose 
terms  had  properly  been  suggested  by  Dr.  Franklin.*  The  re|)ort  was  de- 
bated from  every  point  of  view  and  amended  in  certain  particulars  that 
need  not  detain  us;  and  on  July  16,  1787,  the  convention  adopted  it  as 
amended,  including,  as  Mr.  Madison  says.  "  the  equality  of  votes  in  the  2'*. 
branch,  •<  Connecticut.  New  Jersey,  Delaware.  Maryland.  North  Carolina, 
voting  for,  Pennsylvania,  Virginia.  South  Carolina  and  Georgia  against, 
Massachusetts  divided.  New  York  absent  and  New  Hampshire  not  as  yet  rep- 
resented, iKJth  of  which  States  would  have  voted  for  the  compromise. 

The  irritation  of  the  larger  States  upon  the  victory  of  the  smaller  was  vjctorx 
voiced  by  Mr.  Randolph,  w  ho.  stating  that  it  would  be  "  in  vain  to  co;ne  "' "" 
to  any  final  decision  with  a  bare  majority  on  either  side."  wished  "  the  Con- 
vention might  adjourn,  that  the  large  States  might  consider  the  steps  proper 
to  be  taken  in  the  present  solemn  crisis  of  the  business,  and  that  the  small 

'  Documentary  History,  Vol.  iii,  p.  269. 
» Ibid.,  pp.  269-270. 

V^'J-^^P-         ...  .     ,,     r-  u  ,    .  " Tuesday. /«/j.  3,  1787. 

"The  grand  iommitlce  met.     Mr.  Gerry  was  chosen  chairman.  j    ,      o. 

"The  committee  proceeded  to  consider  in  what  manner  they  should  discharge  the  biisi 
ness  with  which  they  were  mtrusted.  By  the  proce-dings  in  the  Convention,  tlicy  were  so 
eanally  divided  on  the  important  question  of  nfre^^entation  in  the  *uo  branches  that  tlie 
idea  of  a  concihatory  adjustment  must  have  been  in  contemplation  of  the  house  in  the  ud- 
Bointment  of  this  committee.  But  still,  how  to  efifect  this  salutary  purpose  was  the  question 
Many  of  the  members,  impressed  with  the  utility  of  a  general  government,  connected  with 
It  the  indisiiensable  necessity  of  a  representation  from  the  states  according  to  their  num- 
bers and  Health;  while  others,  equally  tenacious  of  ihe  rights  of  the  states,  would  admit  of 
no  other  representation  but  such  as  was  strictly  federal,  or,  in  otlier  words,  equality  of  suf- 
frage This  brought  on  a  discussion  of  the  princ-ples  on  which  the  house  had  divided  and  a 
length);  recapitulation  of  the  arguments  advanced  in  the  house  in  support  of  these  opposite 
propositions.  As  I  had  not  openly  explained  my  sentiments  on  any  former  occasion  on  this 
question,  but  constantly,  in  giving  my  vote,  showed  iiv  attachment  to  the  national  aozern- 
ment  on  federal  trinciples,  I  took  this  occasion  to  explain  my  motives 

"These  remarks  gave  rise  to  a  motion  of  Dr.  Franklin,  which  after  some  modification 
was  agreed  to,  an<l  made  the  basis  of  the  following  report  of  the  Committee."    Vates. 

*  Documentary  History,  Vol.  iii.  p.  343. 


■alltr 
latcs 


186 


THE   UNITED  STATES:   A   STfDY  IN    INTEHNATtOfJAL  ORGANIZATION 


'♦» 


States  might  also  deliberate  on  the  means  of  conciliation."  >     The  smaller 
States,  however,  had  carried  their  point,  and  while  thev  were  willing  to 
adjourn  they  were  in  no  disposition  to  reconsider.     Indeed.  Mr.  Patterson 
of  New  Jersey,  as  reported  by  Mr.  Madison.  "  thought  with  M'.  K.  that 
It  was  hi^h  time  for  the  Convention  to  adjourn  that  the  rule  of  secrecy 
ouRht  to  be  rescinded,  and  that  our  Constituents  should  be  consulted      No 
conciliation  could  lie  admissible  on  the  part  of  the  smaller  Sutes  on  any 
other  Rround  than  that  of  an  equality  of  votes  in  the  2-.  branch      If  M' 
Randolph  would  reduce  to  form  his  motion  for  an  adjournment  sine  die  he 
would  second  it  with  all  his  heart."     Mr.  Randolph  explained  that  he  did 
not  mean  to  move  adjournment  sine  die.  but  until  the  morrow  "  in  order 
that  .some  conciliatory  experiment  might  if  possible  Iw  devised,  and  that  in 
case  the  smaller  States  should  continue  to  hold  back,  the  larfjer  might  then 
take  such  measures,  he  would  not  say  what,  as  might  be  necessary."     Mr. 
Patterson,  being  in  an  obliging  spirit,  seconded  the  adjournment.  "  till  to- 
morrow, as  an  opportunity  seemed  to  be  wished  by  the  larger  States  to 
deliberate  further  on  conciliatory  expedients."    On  the  que.stion  of  adjourn- 
ment  the  States  dividetl  equally,  and  the  convention  adjourned:  but  before 
doing  so.  they  tied  once  on  the  question,  and  the  frame  of  mine'  of  the  con- 
vention as  well  as  of  the  delegations  from  the  larger  States  is  perhaps  to  be 
gathered  from  the  following  remarks  of  Mr.  Rutledge.  who.  according  to 
Mr.  Madison.  "  could  see  no  need  of  an  adjourn',  l^cause  he  could  see  no 
chance  o    a  compromise.     The  little  States  were  fixt.     They  had  repeatedly 
&  solemnly  declared  themselves  to  be  so.     All  that  the  large  States  then  had 
to  do  was  to  decide  whether  they  would  yield  or  not.     For  his  part  he  con- 
ceived that  altho-  we  could  not  do  what  we  thought  best,  in  itself,  we  ought 
to  do  something.     Had  we  not  better  keep  the  Gov',  up  a  little  longer,  hoping 
that  another  Convention  will  supply  our  omissions,  than  aliandon  everj-  thing 
to  hazard.     Our  Constituents   will  Ik:  ven-   little  satisfied  with   us  if  we 
take  the  latter  course."  - 

The  memlK?r.s  from  the  hrger  Stages  were  apparently  in  a  sorry  plight 
I  hey  could  not  break  up  the  Convention  on  the  ground  that  they  were  un- 
willing  to  compromise,  they  could  not  admit  that  they  were  outgeneraled 
by  the  ittle  States,  they  could  not  form  a  Confederation  composed  of  them- 
selves, because  they  were  not  contiguous,  and  even  large  bricks  require  mortar 
to  hold  together.  The  situation  is  thus  stated  in  a  passage  from  M;-  Madi- 
son  s  Notes,  interposed  between  the  adjournment  after  the  vote  and  before  the 
meeting  of  the  17th: 

On  the  morning  following  before  the  hour  of  the  Convention  a  number  of 

^Dncumemap  History,  Vol.  iii.  pp.  345-6. 
'  Ibia.,  p.  347. 


CXKATION  OP  THE  FEDERVL  LEGISLATL'KI 


187 


the  metnbert  from  the  larger  States,  hv  common  agreement  met  for  the  pur- 
pose of  consultmit  on  the  pro|)cr  steps  to  be  taken  in  consequence  of  the  vote 
In  tavor  of  an  equal  Representation  in  the  2*  branch,  anff  the  apparent  in- 
flexibihty  of  the  smaller  States  on  that  [Kjint  —  Several  members  from  the  lat- 
ter Slates  also  attended.     The  time  w.is  wasted  in  vague  conversation  on  the 
subject,  without  anv  specific  proposition  or  agreement.     It  appeared  indeed 
that  the  opinions  of  the  members  who  disliked  the  equality  of  votes  differed 
«o  much  as  to  the  importance  of  that  point,  and  as  to  the  policy  of  risking  a 
failure  of  any  general  act  of  the  Convention  by  inHexibly  opi)osing  it.     Sev- 
eral  of  them  supposing  that  no  good  Covernm'.  could  or  would  be  built  on 
that  foundation,  and  that  .■»■*  a  division  of  the  Convention  into  two  opinions 
was  unavoidable  it  would  be  better  that  the  side  comprising  the  principal 
Mates,  and  a  m.ijority  of  the  people  of  America,  should  propose  a  scheme 
of  Gov',  to  the  States,  than  that  a  scheme  should  be  proposed  on  th.-      'it 
side,  would  have  concurred  in  a  firm  opposition  to  the  smafier  States 
separate  recommendation,  if  eventually  necessary.    Others  seemed 
to  yield  to  the  smaller  States,  and  to  concur  in  such  an  Act  howeve, 
feet  fit  jxreptionable,  as  might  be  agreed  on  by  the  Convention  as 
tho  decided  by  a  bare  majority  of  States  and  by  a  minority  of  the  pe 
the  U.  States,     it  is  probable  that  the  result  of  this  co.  lultatio. 
the  smaller  States  that  they  had  nothing  to  apprehend  from  a  I'mon  or       ^ 
larger,  in  any  plan  whatever  ag**.  the  equality  of  votes  in  the  2'.  bran. 

So  much  for  the  first  compromise,  which  made  the  proposed  r<vs      ju- 
tion  probable.     Xext.   for  the  second  compromise,  which  made  it    ,    fact. 
U  IS  interesting  to  note  that  the  .second,  like  the  first,  deals  «    h  the 
q      -ion  of  suflfragc.  although  it  is  confined  to  the  first  branch,  -n  volvitiK 
questions  of  interest  to  the  States  h      The  compromise  invl  vt-,!  „ne 

memlxrr  of  Congress  for  every   fort>  .uj  inhabitants  of  th      Stat»- 

divided  into  tlistricts  popularly  called  Cent;,       .onal  Districts.     The      mfhert, 
States,  m  which  slav  -y  prevailed,  insisted  that  the  slaves  should  '     .-ounted 
among  the  inhabitants.  Mr.  Butler  and  General  Pinckney  of  S.         Car.,  -la 
going  so  far  as  to  insist  that  they  should  Iw  "  included  in  the  r.      M  Ret. 
sentation  equally  with  the  whites."  «  whereas,  after  much  misgi^  n   -  the  dele 
Rations  of  the  other  States  were  willing  to  allow  five  negroes  tu  be  count- 
as  three  for  the  purpose  of  votes  in  such  States  where  slavery  existed.  .„ 
the  ground  that  such  a  proiwrtion  had  beer  approved  bv  eleven  of  the  Stands 
m  the  Congress  of   1783.»     Again,  the  -.uthem  Staies  insisted  upon  the 
right  to  continue  the  slave  trade,  at  least      r  a  period  of  twery  years  which 
was  very  galling  to  the  menif,ers  of  the  States  where  slavery  did  not  exist 
and  distasteful  to  some  of  the  members  of  the  slave  States.*     It  happened. 

«  Documenlary  Htstnry,  Vol.  iii,  pp.  347-«. 
'/('!(/.,  p.  308.    Session  of  Inly  llth. 
» Ibid.,  p.  i2i.    Session  of  July  12th. 
♦MrMadison  rxprcs.seil  the  following  opinion  ■ 

li  Jtrr;,^'^"  sTaves'^srrnn'J'   ";'   ""^^'li'l  "-"   «"   "^   apprehended    fron,   the 

l&izz'o  .tno.hi^;l;-t^.'r.He•'L^sti■^:,';[o^n.•''t,°r■■^p''^,r  "-^  •^■"""-" 

Durinfj  the  same  session  iihat-if  Aiii-ii-f  '=»>-■,  \f-   v-  '  ,  .    i    i       i      .  i.       , 


The 
Cm 

prom 


S'     .1 

I     1 


\¥ 


188         THl   fNITED  STATM:  A  STUDY   IN    INTONATION  At  (WOAKIZATIOW 

»nd  this  is  the  ground  for  the  second  compromise,  that  the  southern  States, 
producing  products  for  exportation,  were  anxious  to  prevent  regulations  of 
commerce  which  would  enable  the  Congress  to  do  so  by  a  mere  majority, 
wishing  a  two-thirds  vote  in  such  cases  for  their  protection.  The  eastern 
States,  under  the  lead  of  Massachusetts,  were  -.inwilling  to  consent  to  this, 
as  they  were  commercial  States  and  cha.  ges  in  the  regulations  proving  de- 
sirable  would  he  very  difficult  if  a  two-thirds  vote  were  required. 

The  opposition  of  the  States  to  a  tax  uptin  their  exports  was  met  by  a 
provision  that  no  tax  or  duty  should  Ik  laid  on  articles  exported  from  anv 
State,  but  the  commercial  States  were  unwilling  to  be  bound  hand  and  foot, 
as  they  thought  they  would  »«.  by  a  two-thirds  vote  on  the  part  of  the 
legislature  to  regulate  commerce.  Mr.  Gorham  of  Massachusetts  saying  on  this 
very  question  that  "  He  desire<l  it  to  l)c  remcmliered  that  the  Eastern  States 
had  no  motive  to  Union  but  a  commercial  one.  They  were  able  to  protect 
th.  mselvcs.  They  were  not  afraid  of  external  danger  and  did  not  need  tha 
aid  of  the  South".  States."  ' 

Section  6.  Article  VII.  of  the  draft  of  the  Constitution  as  reported  on 
August  6th.  provided  that.  "  No  navigation  act  shall  lie  pas, .      •  :thoul  the 
assent  of  two  thirds  of  the  memliers  present  in  each  House."  »     .     <he  session 
of  .\ugust  22ii  this  dau.se  was.  together  with  that  relating  to  the  importation 
of  slaves,  referred  to  a  committee  composed  of  a  meiiilKT  from  every  State, 
which  recommended  two  days  later  that  the  importation  of  slaves,  euphemisti- 
cally called  "  such  persons  as  the  several  States  now  existing  shall  think  proper 
to  admit."  lie  net  prohibited  prior  t  >  the  year  18()0.  but  that  a  tax  upon  mere 
migration  or  importation  migiit  lie  laid,  and  that  Section  6.  requiring  a  two- 
thirds  vote  for  a  navigation  act.  be  omitted.*     On  August  29th  the  report  of 
this  committee  on  the  question  of  navigation  came  up  for  discussion.     When 
the  report  was  presented.  Mr.  Pinckney  of  South  Carolina  moved  to  insert 
the  two-thirds  re(|uirement.  which  had  been  omitted  by  the  committee,  and 
in  support  of  this  motion  remarked,  as  reported  by  Mr.  Madison,  that  there 
were  five  distinct  commercial  interests:     "  1.  the  fisheries  &  W.  India  trade, 
which  l)elonged  to  the  N.  England  States.     2.  the  interest  of  N.  York  lay 
in  a  free  trade.     3.  Wheat  &  flour  the  Staples  of  the  two  middle  States. 
(X.  J.  &  Pcnn'.)— 4.  Tob".  the  staple  of  Mary".  &  Virginia  &  partly  of 
X.  Carolina.     5.   Rice  &  Indigo,  the  staples  of  S.  Carolina  &  Georgia.     These 
different  interests  would  lie  a  source  of  oppressive  regulations  if  no  check 
to  a  bare  majority  should  Ix;  provided.     States  pursue  their  interests  with 
less  scruple  than   individuals.     The  power  of  regulating  commerce  was  a 


wrong  to  admit  in  tlu-  Omsiitiition  the  idea  that  there  could  be  prooertv  in  men' 
menlary  Histnry.  \',,1.  iii,  p.  618.  *~    /   m  nren. 

'  Ibul.,  I).  ,S'.l.     Si-,sion  of  August  22d. 

« llnd.,  p.  4?0 

'  Ibid.,  p.  u.h. 


Docu- 


C««ATION   or  THE   rtOttAL  LEGIiLATLBt 

I  the  part  of  the  S.  StatM.     Thev  dirt  n, 


189 


pure  conccMion  .»n  mc  pan  oi  me  >.  .>tate«.     I  hey  did  not  need  the  protec- 
tion of  the  \.  State*  at  present."  '     To  this  statement  General  Pinckney. 
likewise  of   South  Carolina,  addr.l   that  "  it  was  the  true  interest  of  the 
S.  States  to  have  no  regnlafion  of  commerce ;  luit  consi.lcrinR  the  loss  hroufiht 
on  the  commerce  of  the  F-astern  States  by  the  revolution,  their  lilieral  con- 
duct  towards  the  views  of  South  Carolina,  and  the  interest  the  weak  South". 
States  had  in  king  united  with  the  strong  Fastcrn  States,  he  thought  it 
proinrr  that  no  fetters  should  k-  imposed  oi.  the  power  of  making  commcr- 
cial   regulatioiKs ;  and  that   his  constituents  though  prejudiced   against   the 
F.astcm  States,  would  Iw  reconciled  to  this  likralitv  —  lie  had  himself,  he 
said,  prejudices  ag".  the   fastern  States  kfore  he  came  here,  but  would 
acknowledge  that  he  had   found  them  as  likral  and  candid  as  any  man 
whatever."     The  likralitv  and  candor  of  South  Carolina  to  which  General 
Pinckney  referred  are  thus  stated  by  Mr.  Madison  in  a  note  of  later  date: 

He  (General  Pinckney)  meant  the  permission  to  import  slaves  .\n  un- 
derstanding on  the  two  subjects  of  navi.jafwn  and  f/ujrry,  had  taken  place 
betwo-n  those  parts  of  the  Union,  which  explains  the  vote  on  the  MotU)n  de- 
pending, as  well  as  the  language  of  Gen'.  Pinkney  &  others.' 

In  the  course  of  the  verv  interesting  delute  which  ensued,  the  delegates 
of  the  States  supposed  to  k  affected  bv  the  two-thirds  rc|uircment  or  by  a 
navigation  law  of  anv  kind,  laid  the  views  of  their  States  ktore  the  Con- 
vention with  commendable  frankness.  Mr.  Butler  of  South  C  ..rolina.  for 
example,  speaking  for  the  southern  States,  said  that  "  he  consi.lered  the  in- 
terests of  these  and  uf  the  I-astern  States,  to  k  as  different  as  the  interests 
of  Russia  and  Turkey."  Hut  nevertheless.  •'  desirous  of  conciliating  the  affec- 
tions of  the  East :  States."  he  sai.l  he  sh-uld  vote  against  the  two-thirds  re- 
quirement instead  of  a  majority.'  Mr.  Mason  of  N'irginia.  bitterlv  or>posed 
to  slavery  and  its  recognition  in  the  Constitution,  said : 

If  the  Gov',  is  to  he  lasting,  it  must  be  founded  in  the  confidence  &  af- 
fectioivs  of  the  people,  .-.nd  must  be  so  constructed  as  to  obtain  these  The 
Maiony  wiU  be  governed  by  tkir  interests.     The  Southern  St.ite'   are  the 

selves  bound  band  &  foot  to  the  K.-.stern  States,  and  enable  them  to  exclaim, 
them  ini;";';  hands™""""  '"^  '  ""^'"  -"-"-"«he  lord  hath  delivered 

So  much  for  the  views  of  the  southern  States,  to  which  Mr.  Gorham.  who 
had  already  expressed  h  mself  on  the  subject,  replied: 

If  the  Governmei    is  to  k  so  fettered  as  to  k  unable  to  relieve  the  Eastern 

>  Documentary  History,  Vol.  iii.  pp.  636-7 

-  /('III.,  p.  6,!7. 
» Ibid.,  p.  6J9. 


Iw'- ; 


n 


Grant  of 

I.tRis- 
lative 
J'uwcr 


190  THE   UNITED  STATES:   A  STUDY  IN    INTERNATIONAL  ORGANIZATION 

States  what  motive  can  they  have  to  join  it,  and  thereby  tie  their  own  hands 
from  measures  which  they  could  otherwise  take  for  themselves.  T.he  East- 
ern States  were  not  led  to  strengthen  the  Union  by  fear  for  their  own  safety. 
He  deprec:..ed  the  consequences  of  disunion,  but  if  it  .should  take  place  it 
was  the  Southern  part  of  the  Continent  that  had  the  most  reason  to  dread 
them.  He  urged  the  improbability  of  a  combination  against  the  interest  of 
the  Southern  States,  the  different  situations  of  the  Northern  &  Middle  States 
being  a  security  against  it.  It  was  moreover  certain  that  foreign  ships  would 
never  be  altogether  e.xcluded  especially  those  of  Nations  in  treaty  with  us.' 

The  question  had  become  one  of  Union  or  no  Union,  the  Constitution 
or  no  Constitution,  and  as  the  eastern  and  southern  States  had  reached  ati 
understanding  there  appeared  nothing  for  the  delegates  of  the  northern  and 
middle  States  to  do  but  to  confirm  that  understanding,  or  to  renounce  the 
attempt  to  unite.  Indeed,  the  delegates  appear  to  have  been  so  impressed 
with  the  necessity  of  this  that  the  report  of  the  committee  eliminating  the 
requirements  of  "  two  thirds  of  each  House  to  pass  a  navigation  act "  was, 
as  Mr.  Madison  says.  "  then  agreed  to.  nem :  con :  " 

As  a  result  of  these  two  compromises,  which  have  been  stated  at  some 
length,  the  obstacles  in  the  way  of  a  Constitution  of  the  kind  proposed  in 
the  Randolph  resolutions  were  circumvented  if  they  were  not  wholly  re- 
moved :  and  the  concessions  upon  which  the  compromises  were  based  ap- 
pear to  have  been  not  concessions  of  the  members  as  si.ch.  nor  of  the  people 
as  such,  but  of  the  States,  represented  in  their  political  capacity,  in  the  matter 
of  equality:  and  of  the  States  in  the  second  compromise,  or  of  the  interests 
of  the  people  of  the  different  States,  to  be  affected,  on  the  one  hand,  by 
slavery,  and  by  navigation  laws  on  the  other. 

It  will  l)e  observed  that  the  question,  and  therefore  the  compromise,  in 
each  case  related  to  the  legislative  branch  of  the  proposed  government. 
In  conipari.son  with  these  questions,  the  powers  to  l)e  granted  to  the  legisla- 
tive (U'partment  were  matters  of  detail,  for  it  was  generally  agreed  that 
this  department  should  possess  the  powers  granted  to  the  Congress  by  the 
Articles  of  Confederation  and  certain  added  powers  in  order  to  render  the 
proposed  government  adecjuate  to  the  exigencies  of  the  Union.  Two  of 
these  powers  were  admittedly  those  to  impose  taxes  in  order  to  raise  a 
revenue,  and  to  regulate  commerce  with  foreign  nations  and  among  the 
States  themselves. 

Two  points  are  to  lie  observed  in  this  connection,  that  the  grant  of  legis- 
lative powers  was  not  general,  as  in  the  case  of  the  Judiciary,  by  virtue 
whereof  the  judicial  power  of  the  United  States  is  vested  in  a  Supreme 
and  inferior  courts,  the  Coiistitiuion  saying,  in  regard  to  the  legislature, 
that  all  legislative  powers  herein  granted  "  shall  be  vested  in  the  Congress 

» Documeiilary  History,  Vol.  iii,  pp.  641-2. 


CREATION  OF  THE  FEDERAL  LEGISLATURE 


191 


of  the  United  States,"  to  consist  of  a  Senate  and  House  of  Representatives. 
As,  therefore,  the  Union  did  not  exist  of  itself  but  had  to  be  created,  and 
as  the  government  of  this  Union,  composed  of  three  branches,  had  likewise 
to  be  created  by  the  States,  which  already  existed,  it  follows  that  the  legis- 
lative department  could  possess  only  such  powers  which  the  delegates  of 
the  States,  subsequently  confirmed  by  conventions  of  the  States,  granted 
either  directly  or  by  necessary  implication  to  the  legislative  department  of  the 
government  of  the  Union. 

But  the  powers  granted  are  wisely  enumerated  in  general  terms,  leaving 
the  Congress  free  to  exercise  its  discretion  in  the  choice  of  means  to  carry 
out  the  powers  expressly  or  impliedly  granted,  and  the  legislature  as  well  as 
the  Supreme  Court  has  never  forgotten,  the  one  in  passing  laws,  the  other 
in  interpreting  and  applying  them,  that  each  was  dealing  with  a  Constitu- 
tion. 

The  second  observation  is  that  the  powers  were  to  be  exercised  in  such 
a  way  as,  to  quote  the  language  of  Section  8  of  Article  I  of  the  completed 
Constitution,  "  to  provide  for  the  cc  mmon  defense  and  general  welfare  of 
the  United  States,"  and.  within  the  express  or  implied  grant  of  powers  for 
this  great  purpose,  "  to  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other  powers  vested 
in  this  Constitution  in  the  government  of  the  United  States  or  any  depart- 
ment or  officer  thereof." 


IX 
CREATION  OF  THE  EXECUTIVE 


n 


ir       ) 


But  because  the  Laws,  that  are  at  once,  and  in  a  short  time  made,  have  a  constant  and 
jastuiij  Korii;,  and  need  a  perpetual  Execution,  or  an  attendance  thereunto:  Therefore 
'tis  necessary  there  should  be  a  I'ower  alu;ayi  in  Bemg,  which  should  see  to  the  Execution 
of  the  Laws  that  arc  niaiic  and  remain  in  1  orcc.  And  thus  the  Legislative  and  Exccutiie 
Voixcr  come  olttn  to  be  iratcd.  (John  Locke,  7'au  Treaties  of  (Joiernment,  7O90,  Book 
11,  Ch.  \ll,  Secttun  l-H,  II  orks,  edition  of  171-1,  I'ol.  II.) 

Section  I.  The  executive  Tower  shall  ho  vested  in  a  President  of  the  L'nited  States  of 
America.  He  shall  hold  his  Office  during  the  Term  of  four  Years,  and,  toijether  with  the 
Vice  President,  chosen  for  the  same  Term,  be  elected,  as  follows  .  .  . 

Before  he  enter  on  the  Kxecution  of  his  0*ce,  he  shall  take  the  following  Oath  or 
Affirmation: — "I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the  Office  of 
Presiilcnt  of  the  United  States,  and  will  to  the  best  of  my  Ability,  preserve,  protect  and 
defend  the  Constitution  of  the  United  States." 

Section  2.    ... 

He  shall  have  Power,  by  and  with  the  '  ice  and  Consent  of  the  Senate,  to  make 
Treaties,  provided  two  thirds  of  the  Senators  present  concur ;  and  he  shall  nominate,  and 
by  and  with  the  .Advice  and  Consent  of  the  .Senate,  shall  appoint  Ambassadors,  other  public 
Ministers  and  Consuls,  Judges  of  the  supreme  Court,  and  all  other  Officers  of  the  United 
States,  whose  Appointments  arc  not  herein  otherwise  provided  for,  and  which  shaJI  be 
established  by  Law :  but  the  Congress  may  by  Law  vest  the  .Appointment  of  such  inferior 
Officers,  as  they  tliink  proper,  in  the  President  alone,  in  the  Courts  of  Law,  or  in  the 
Heads  of  Departments.  .  ,  . 

Section  3.  He  shall  from  time  to  time  give  to  the  Congress  Information  of  the  State 
of  the  Union,  and  recommend  to  their  Consideration  such  Measures  as  he  shall  judge 
necessary  and  c.\peclu  nt ;  he  niav.  on  cxtr.iorilinary  Occasions,  convene  both  Houses,  or 
either  of  them,  and  in  Case  of  Disagreement  between  them,  with  Respect  10  the  Time  of 
AilJHurnmoiit,  lie  may  adjour  1  them  to  such  Time  as  he  shall  think  proper;  he  shall  receive 
Amliassadors  and  other  public  Ministers;  he  shall  take  Care  that  the  Laws  be  faithfully  exe- 
cuted,  and   shall   Commission   all   the   Officers   of  the    United   States. 

Section  4.  The  President,  \  ice  IVesideut  and  all  civil  Officers  of  the  United  States, 
shall  lie  removed  from  Office  op  Im|xachnient  for.  .ind  Conviction  of,  Trea.son,  'bribery,  or 
other  high  Crimes  and  Misdeamcanors.     (Constitution  of  the  United  Stales,  Article  11.) 

Soon  after  the  adjournment  of  the  federal  Convention  some  one  said  to  Benjamin 
Franklin,  "Well,  Doctor,  have  you  given  us  a  republic  or  a  mon,ircIiy  ? "  Franklin  re- 
plied. "  .\  republic,  if  you  can  keep  it."  (./<idri'i<.  C.  McLaughlin.  The  Courts,  The  Con- 
stttHtitn  and  Parties,  lf)l2,  p.  151.) 

By  the  constitution  cif  the  l'nited  States,  the  President  is  invested  with  certain  impor- 
tant poliiical  powers,  in  llie  exercise  of  which  he  is  to  use  his  own  discretion,  and  is 
aiciium.il)le  only  in  his  country  in  his  political  character,  aiul  to  his  own  conscience.  .  .  . 
The  subjects  are  political.  They  respect  the  nation,  not  individua!  riglits,  and  being  en- 
trusted to  the  exectitiie,  the  decision  uf  the  executive  is  conclusive.  .  .  . 

The  proviiKe  of  the  court  is,  solely,  to  decide  on  the  rights  of  inuividuals  not  to  enquire 
how  the  executive,  cr  executi\e  otlicers,  perform  duties  in  which  tliey  have  a  discretion. 
Questions,  in  their  nature  political,  or  w!iich  are.  by  the  constitution  and  laws,  submitted  to 
the  ex(vuti\c,  can  never  be  made  in  tliis  c "urt.  {Chief  J:.stice  Marshall  in  Marbury  v. 
Madis"n,  1  Cranch,  137,  l6j-l66.  170.  decided  in  iSoj.) 

These  orders,  given  by  the  executive,  under  the  construction  of  the  act  of  congress  made 
by  the  department  to  which  its  execution  was  assigned,  enjoin  the  seizure  of  .American 
vessels  sailing  from  a  FrerKh  port.  Is  the  officer  who  obeys  tliem  liable  for  aauiages  sus- 
tained liy  this  misconstruction  of  the  act,  or  wMl  his  orders  excuse  him?  If  hi,,  instructions 
afford  him  no  prutection.  then  the  law  must  take  its  course,  and  he  must  pay  such  damages 
as  are  legally  awarded  against  him:  .  .  . 

...  I  was  strongly  inclined  to  think,  that   where,   in  consequence  of  orders  from  the 

IQ2 


CREATION   OF  THE  EXECUTIVE 


193 


legitimate  authority,  a  vessel  is  seized,  with  pure  intention,  the  claim  of  the  injured  party 
for  damages  would  be  against  that  government  from  which  the  orders  proceeded  and 
would  be  a  proijer  subject  for  negotiation.  But  1  have  been  convinced  that  I  was  mistaken, 
and  1  have  receded  from  this  first  opinion.  1  acquiesce  in  that  of  my  brethren  which  is 
ti.at  the  instructions  cannot  change  the  nature  of  tlie  transaction,  nor  lcgali;.e  an  act  which 
without  those  instructions,  would  have  b<.en  a  plain  trespass.  (t/iiV/  Justice  Marshall  in 
The  Flying  lish,  i  L ranch,  170,  17S,  179.  decided  in  1X04.) 

.^nl.!".^?  "  """'her  feature  common  to  both  governments.  In  England  the  king  has  his 
constitutional  counsellors  and  councils.    The  peers  of  the  realm  are   by  their  birtfi,  heredi- 

[i^l  ?i"!fl  r"  °i  »7  "-r',""'  ^;"'  ""^y  ^'•"  """'  '"«'^"'"  '»■  "i*--  ^'"S  to  impart  their  ad- 
rn^m,-  1  ;;   i,/^""  '  V'^  ^'"■'^"  "^  ?  ''""""'  ^"^  ^'"•'  ma'tcrs,  229.     Rut  the  principal 

couniil  is  the  fnry  coumil.  and  1j>  way  of  cmuKiicc  i.s  called  tlie  .o«ii.i7,  229.    So  the  pres- 

\t  u  J  y^  ''",1'ci  ""''  "'^y  r^l'iirc  the  opinion  in  writing  of  the  principal  officer  at 
the  head  of  each  of  the  executive  .lepartments."  &c.  2  Sec.  2  .Art.  Clause  2,  Const.  This  is 
nerlon  in  hi?  Tnl  r  "  "  ^/"'yf '"•"'•'■  '".wl'ah  the  president  is  present,  as  the  king  is  in 
person  in  his.  4  HI.  Com.  231.  The  senate  is  the  ...11.10/  in  making  treaties,  in  advising 
ffn^,,!?  K  t"f.  '"  3PPV'"«nienls  to  office.  Senators  are  not.  ex  officio,  counsellors  indi- 
n.H.V   Tr-        Pf^".'.'^"*  "'"fy  coi^V"^  '"'«•'  '>o>'s«,  or  either  of  them."     (Mr.  Justice 

7t"bn^e^7^,',^^,  f.Z  '^"""  ""'  ''"""'  "'  "'  ^'""''""'''"  ""'  ^''^■^""""" 

tionallw"^h^f  Ln'fh""''  °^  the  chief  merits  of  the  American  system  of  Written  constitu- 
tional law  that  al  the  powers  mlrustcd  to  government,  whether  State  or  national  are 
divided  into  the  three  grand  departments,  the  executive,  the  legislative  and  the  iudicfal 
l^Mr",  'T  '""-'i  »l'I'V.'l"-.ate  to  each  of  these  branches  of  government  shall  be  ve  ted  i„ 
a  separate  body  of  public  servants,  and  that  the  perfection  o?  the  system  requires  that  the 
U  ,  '    "T?''    >'"'    '^""^':  '}"'''   departments   shall    be    broadly   and   dearly   defined 

po^^r  n  InvC  ?f  "h  '"'h"''?'  ^'rS'!"^  "' ,""^  '>-^'^'"  """  "•^'  P"^""'  intrusted  with 
f.^,?fi,r„,  .  1  Vi  Ihcse  brandies  shall  not  be  permitted  to  encroach  upon  the  powers 
eke  of  ,h"."'  "'"■"•  ''"'  •''■•■"  '''»^'' .^hall  by  the  law  of  its  creation  l,e  limited  to  the  exer- 
cise of  the  powers  appropriate  to  its  own  department  and  no  other  To  these  scneral 
f^T:(XVt'\hl7Z  p'  Constitution  of  the%-ni,ed  Slates  some  fmporUntlxceSs 
une  ot  these  1^,  that  the  President  is  so  lar  made  a  part  of  the  legislative  oower  that  his 
assent  IS  required  to  the  enactment  of  all  statutes  and  resolntions  of  Conl-ress 

ine  theVefrarof'Mi'Vrl  h'",%'™''"'  ^""-."''J"^  ^  '"'1  "'•'>•  l.evome  a  lau  notwithstand- 
Congrcs.s  Tresident  to  ap|.rove  it,  by  a  vote  of   two-thirds  of  each  House  of 

i^J'Z'jl^"'  *''f  .^'"^'e  's  made  a  partaker  in  the  functions  of  appointing  officers  and  mak- 
ing treaties,  which  are  supposed  to  be  properly  executive,  by  rcm.irinK'  its  conscm  to  ?he 
appoin  ment  of  such  officers  and  the  ratil,ca.io„  of  treatie^.  The  Sen  Ue  a  so  ™ise°  hi 
judc.a  power  of  trymg  im,K-ac!m,e»ts.  and  the  House  of  preferring  articles  of  impeachment 
1.  the  man,,  however,  that  instrument,  the  model  on  which  are  constriu-  e  I  ?hc  f.mda- 
mental  laws  of  the  States,  has  blocked  out  with  singular  precision,  and  in  1  Id  I  nes  in  iU 
^,1  ,?  1  "^.  "'"'"V'^  ••'""«""•"«  of  power  to  the  executive,  the  legislat  ve  and  t  e 
judicial  departments  of  the  government.  It  also  remains  true,  as  a  general  rule  ?ha  the 
anoTer.'""'  ^'  '^'  Constitution  to  one  of  these  departments  cafnor  be  exerciled  by 

R,„' wllfl^  1'^  '^''^  """  """t  ^'■'■  •""■""''  "^'''^  "^^d  "»  repetition  here  to  give  them  force 
be  Tori™  ""•"■""?'  '1  ^i''"°'V^  '""^"'^  '^^*  "'  S^-""^''  *hown  a  wise?  an,l  command: 
,;  L  1  •  ?r,^''  '"  *,^'''  "'  *'"'?'^  branches  from  encroachments  upon  the  others  i  is  not 
to  be  denied  that  such  attempts  have  been  made,  and  it  is  b.lieved  not  alwavs  wi'thoutsuc- 
ZTn,J<  '""'■''''.'"  "•!■■  "'""'•"  "f  States,  in  their  popuIati,.n  and  «^.alth.  and  i ,  he 
amount  of  power,  if  not  ,n  ,ts  nature  to  be  exerci.sci  1,;  He  Federal  ?.  ver  imem  nrese  s 
powerful  an,l  growing  temptations  to  those  to  whom  that  exercise  fs  intrusted  o  ove  s  en 
the  just  l.o,,n<laries  of  their  own  department,  and  enter  upon  the  don  an  of  one  of  the 
others,  or  to  assume  powers  not  intrusted  to  cither  of  tliei^.  (Mr  Justice  Miu"r  in  Kit 
bourn  ,■.  Thompson.  103  Vnxted  States  Reports.  ,68.  /go.  w.  decided  in  jSflo.) 

Rut   the   principle   of  definition   and   limitation   of   powers   harmonises    so   well   ,v,fli    .t,» 

is   not  concentrated   in. any  single  official ^'orVoVlv' o^  VCs^' The  "prt Mem   h^s^'dX',"" 

rights,   upon   which   neither   Congress   nor   the   ju.licial    departmen,   can    encroach      ,   //"rf 

9  T  p'l'%!";')""'""'  '"  ""  ^''""  "f  ""-  ^-^  "^  ""  Consti,u,ion'7sSsS,h  eJ  i^ 


f'  i- 


n- 


CHAPTER  IX 

CREATION   OF    THE   EXECUTIVE 

It  was  not  by  chance  that  Mr.  Randolph's  resolutions  began  with  the 
legislative  department  and  it  need  occasion  no  surprise  that  the  question  of 
powers  to  be  granted  to  this  department  of  the  proposed  Government  was  the 
subject  of  prolonged  debate  and  the  grant  itself  the  result  of  concession  and 
compromise.  The  lack  of  power  on  the  part  of  Congress  to  raise  revenue,  to 
maintain  the  government  under  the  Articles  of  Confederation,  and  to  regulate 
commerce  with  foreign  nations  and  among  the  States  was  the  cause  of  the 
convention,  and  this  j  of  the  plan  would  have  been  discussed  and  decided, 
as  it  was.  if  Mr.  Randolph's  resolutions  had  ended  instead  of  beginning  with 
the  legislative  department.  But  the  fundamental  question  at  issue  was  the 
definition  of  power.  In  comparison,  the  exercise  of  this  power  by  an  executive 
and  indeed  even  the  interpretation  of  the  power  were  minor  matters.  Without 
the  grant  there  could  l)e  no  exercise  of  the  power,  there  could  be  no  interpreta- 
tion, there  could  be  no  Constitution. 

Howe\er  a  second  branch  of  the  proposed  government  was,  according  to 
the  theory  of  the  division  of  powers,  the  executive.  Mr.  Randolph's  proposi- 
tions  contained  in  the  seventh  and  eighth  of  his  resolutions,  provide  respec- 
tively : 

7.  Res^.  that  a  Xational  Executive  be  instituted :  to  be  chosen  by  the  Xa- 
tional  Legisl.-iture  for  the  term  of  years,  to  receive  punctually  at  stated 

times,  a  ti.xed  compensation  for  the  services  rendered,  in  which  no  increase  or 
dimmution  shall  be  made  so  as  to  affect  the  Magistracy,  existing  at  the  time 
of  increase  or  diminution,  and  to  be  ineligible  a  second  time ;  and  that  besides 
a  general  authority  to  execute  the  national  laws,  it  ought  to  enjoy  the  Execu- 
tive rights  vested  in  Congress  by  the  Confederation. 

J'-.Res''.  that  the  Executive  and  a  convenient  number  of  the  National 
Judiciary,  ought  to  compose  a  Council  of  revision  with  authority  to  examine 
every  act  of  the  Xational  Legislature  before  it  shall  operate,  &  every  act  of  a 
particular  Legislature  before  a  .Negative  thereon  shall  be  final ;  and  that  the 
dissent  of  the  said  Council  shall  amount  to  a  rejection,  unless  the  Act  of  the 
National  Legislature  be  again  passed,  or  that  of  a  particular  Legislature  be 
again  negatived  by  of  the  members  of  each  branch.' 

There  appears  to  have  been  no  objection  on  the  part  of  any  member  to 

^Documentary  History  of  the  Constitution,  Vol.  iii.  pp.  18-19.    Session  of  May  29th 


CREATION  OF  THE  EXECUTIVE 


195 


the  institution  of  an  executive  department  which  should  possess  at  least  the 
rights  "  vested  in  Congress  by  the  Confederation."  A  difference  of  opinion 
existed,  however,  as  to  whether  the  executive  should  consist  of  one  person  or 
a  number;  as  to  the  period  iliiring  which  the  executive  should  hold  office;  the 
eligibility  of  the  incumbent  to  reelection ;  the  method  of  choice  and  the  powers 
which  the  executive  should  possess. 

It  would  seem  that  Mr.  Randolph,  who  stood  sponsor  for  the  resolutions 
which  l)ear  his  name,  although  the  authorship  thereof  is  popularly  accredited  to 
Mr.  Madison,  was  in  favor  of  a  plural  executive  representing  the  different  sec- 
tions of  the  Union.  The  Xew  Jersey  plan  laid  Ijefore  the  convention  on  June 
15th  specified  "  a  federal  Executive  to  consist  of  persons."  •     The 

convention,  however,  decided,  and  wisely,  in  favor  of  a  single  executive. 

It  will  be  observed  that  in  each  plan  the  executive  was  to  be  elected  by  the 
national  legislature.  The  first  draft  of  the  Constitution  as  reported  on  August 
6th,  provided,  in  the  first  sect'um  of  its  tenth  article  that,  "the  Executive 
Power  of  the  United  States  shall  be  vested  in  a  single  person.  His  stile  shall 
be  '  The  President  of  the  United  States  of  America ' ;  and  his  title  shall  be, 
'  His  Excellency.'  He  shall  Ije  elected  by  ballot  by  the  Legislature.  He  shall 
hold  his  office  during  the  term  of  seven  years ;  but  shall  not  be  elected  a  second 


tmie. 


Although  every  other  clause  of  the  section  was  modified,  the  convention 
stood  fast  by  the  single  executive,  as  the  great  desire  of  the  delegates  was  to 
maintain,  as  a  cardinal  principle  of  the  proposed  scheme  of  government,  a 
separation  of  powers,  and  therefore  to  make  the  president  independent  of  the 
other  departments  of  government.  It  was  understood  that  the  president  was 
to  l)e  an  elective  officer:  and  as  far  as  known,  there  was  not  made  at  any  time 
a  proposition  for  an  hereditary  executive.  It  was  felt  by  some  niem1)ers  that 
he  should  be  elected  for  a  fixed  number  of  years  and  be  ineligible  to  reelection. 
Those  favoring  his  election  by  the  national  legislature  were,  as  a  rule,  op- 
posed to  reelection  and  in  favor  of  a  longer  term  in  order  that  his  dependence 
upon  the  legislature  might  not  be  too  close  or  too  apparent.  Those  opposing 
the  choice  by  the  legislature  appear  to  have  favored  a  short  term  with  the  pos- 
sibility of  reelection.  It  is  thus  seen  that  these  questions  were  interrelated 
not  separate  and  distinct.  Without  pausing  to  trace  the  steps  by  which  an 
agreement  was  reached  upon  the  presidency,  it  will  suttee  to  say  that  the  term 
was  fixed  at  a  period  of  four  years,  subject  to  reelection.  There  is  no  provi- 
sion in  the  Constitution  preventing  a  president  from  being  reelected  for 
periods  of  four  years  throughout  his  natural  lifetime.  General  Washington's 
refusal  to  stand  a  third  time  set  a  precedent  'ollowed  by  Messrs.  Jefferson  and 


A  Single 
Executive 


Term  of 
0~.e 


>  Dflcumentary  History,  Vol.  ii 

■  /'•.•.-•■.,  p.  4Bj. 


p.  126. 


196 


THE   U.VITEO  STATtS:   A  STUDY  IN   INTERNATIONAL  ORGANIZATION 


ElMtoral 
System 


h    n 


Jackson,  who  might  have  been  elected  for  a  third  term,  and  has  established  a 
custom  hitherto  unbroken.  Finally,  as  the  result  of  much  discussion,  and  of 
many  propositions  made  only  to  be  rejected,  it  was  agreed  that  the  president 
should  be  elected  neither  by  the  legislature,  by  the  Congress,  by  the  people,  nor 
by  the  States,  and  yet  that  he  should  be  elected  by  a  method  which  suggests  each 
of  these.  Tiius.  a  number  of  persons  called  electors,  equal  to  the  number  of 
senators  and  representatives  to  which  each  State  was  entitled  in  Congress,  wero 
to  be  appointed  in  such  manner  as  the  legislature  of  each  of  the  States  should 
determine.  The  electors  thus  chosen  were  to  meet  within  their  respective 
States,  and  to  vote  by  ballot  for  two  persons,  only  one  of  whom  could  be  a 
citizen  of  the  same  State  with  themselves.  The  person  having  the  greatest 
nunil)er  of  votes  was  to  be  president,  provided  he  received  a  majority  of 
the  whole  number  of  electors  appointed.  If  more  than  one  received  a 
majority  and  had  an  equal  number  of  votes,  the  House  of  Representatives 
would  clioose  by  ballot  one  of  them  for  president.  If  no  person  received 
a  majority,  then  the  president  was  to  be  chosen  from  the  five  highest  on  the 
list.  In  such  a  case  the  House  of  Representatives  voted  by  States,  each 
of  which  was  to  possess  one  vote.  For  this  purpose  a  quonim  of  the 
House  was  to  consist  of  two-thirds  of  the  States,  and  a  majority  of  the 
States  was  necessary  for  a  choice.  In  any  event,  the  person  having  the  great- 
est number  of  votes  of  electors  was  to  be  vice  president,  and  if  there  remained 
two  with  e(|ual  votes,  the  Senate  was,  by  ballot,  to  choose  one,  who  thereupon 
became  the  vice  president.     All  of  these  features  were  in  the  plan  agreed  to. 

It  is  apparent,  from  this  brief  account  of  the  method  ultimately  adopted, 
that  the  electors  could  be  chosen  by  popular  vote  within  a  State  if  the  legisla- 
ture thereof  cared  so  to  do;  or  the  legislature,  if  it  preferred,  might  itself 
appoint  them.  The  States  might  participate  directly  in  the  election  in  case 
no  one  voted  for  by  the  electors  had  received  a  majority  of  the  votes  cast. 
It  was  believed  by  the  framers  that  this  might  frequently  happen,  inuring  to 
the  advantage  of  the  smaller  States,  just  as  the  selection  by  election  would  inure 
to  the  advantage  of  the  larger  ones.  The  election  of  the  vice  president  under 
like  circumstances  would  inure  to  the  advantage  of  the  small  States  equally 
represented  by  two  senators  in  the  upper  house. 

The  meml)ers  of  the  convention  were  without  experience  in  this  matter, 
and  the  work  of  their  hands  was  faulty.  It  has  twice  been  amended,  and 
within  the  memory  of  men  still  living  its  application  gave  rise  to  a  disputed 
election  which  tested  the  forliearance  and  the  capacity  of  the  American  pct)ple 
for  self-government.  The  precedent  for  the  use  of  electors  chosen  in  tlii-; 
way  seems  to  have  l)een  taken  from  the  Constitution  of  the  State  of  Maryland 
in  which  the  senators  were  chosen  by  persons  called  electors  chosen  from  each 
of  the  counties  of  the  .'^latc,  who,  meeting  in  the  city  of  Annapolis  on  a 


CREATION   or  THE  EXECUTIVE 


197 


specified  date,  elected  by  ballot  "  either  out  of  their  own  body,  or  the  people 
at  large,  fifteen  senators  (nine  of  whom  to  be  residents  on  the  western,  and 
six  to  be  residents  on  the  eastern  shore)  men  of  the  most  wisdom,  experience 
and  virtue.  .  .  ."  ' 

The  great  duty  imposed  upon  the  president  appears  to  be  that  prescribed  fl^^J'^^"*'* 
in  the  oath  or  aflfirmation  taken  before  entering  upon  the  execution  of  his  high  *^"'" 
office,  that  he  will  to  the  best  of  his  ability  "  preserve,  protect  and  defend  the 
Constitution  of  the  United  States."  That  he  may  lie  held  to  strict  account- 
ability both  for  the  performance  of  his  duties  and  the  exercise  of  his  rights, 
Ixjth  he  and  the  vice  president,  who  succeeds  him  in  case  of  death  or  disability, 
are,  to  quote  the  exact  language  of  the  fourth  section  of  the  second  article  of 
the  Constitution,  to  "  be  removed  from  Ofifice  on  Impeachment  for,  and  con- 
viction of.  Treason,  Bribery  or  other  high  Crimes  and  Misdemeanors." 

It  has  often  l)een  stated  that  the  president  possesses  greater  power  than  ni« 
any  constitutional  monarch,  m  that  he  is  ex  officio  commander  in  chief  of  the  i^°""» 
army  and  navy  in  any  event,  and  of  the  militia  of  the  several  States  when 
called  into  the  actual  service  of  the  United  States.  This  is  indeed  a  great 
power;  but  it  is  one  with  v.hich  the  framers  of  the  Constitution  were  familiar, 
and  which  they  were  therefore  willing  to  entrust  to  an  executive  officer  of 
their  own  choice,  inasmuch  as  the  several  States  had  entrusted  such  powers  to 
their  chief  executives,  termed  indifferently  president  or  governor,  and  desig- 
nated indifferently  captain-general  or  commander-in-chief.  The  framers  of 
the  Constitution  foresaw  that  it  would  W-  but  natural  that  he  would  request 
the  opinion  of  the  principal  officers  of  the  various  executive  ilepartnients  not 
created  by  but  contemplated  in  the  Constitution.  It  was  neither  unnatural  that 
be  should  be  authorized  to  grant  reprieves  and  pardons  fur  offenses  against 
the  United  States ;  nor  that  he  should  be  denied  power,  in  ca.ses  of  impeachment, 
lest  he  might  l)e  tempted  to  exercise  it  in  Ijehalf  of  one  whom  he  himself  had 
appointed  and  in  whose  offense  he  might  have  participated. 

The  convention  was  much  disturbed  as  to  the  appointing  power  and  as  to 
its  location.  This  was  to  lie  expected,  both  from  the  difficulty  inherent  in  the 
subject  and  from  the  lack  of  any  uniform  rule  in  or  experience  had  with  the 
constitutions  of  the  States,  where  various  methods  had  been  tried  without  the 
development  of  any  one  which  com.mended  itself  as  perfect  or  markedly 
superior  to  the  others. 

That  the  president  should  negotiate  treaties  in  the  first  instance  was  s'-;n  Tr<-atirr 
to  be  inevitable  from  the  outset :  that  he  should  conclude  them  and  hind  the 
£"  tes  and  their  citizens  and  inhabiiants  without  check  or  cooperation  on  the 
jiart  of  the  legislative  department  was  felt  to  lie  far  from  desirable.  The  solu- 
tion in  this  case,  however,  was  a  very  happy  one,  in  that  the  president  represents 
1  Th?  C,->»sti>viinns  of  the  S.-re^o}  !»d,-!'r»tii-Ht  Stalfs,  1781,  p.  12S,  .A.rt;dc  IS. 


198 


THE    LMTED  STATES:   A  8TLDY   IN    INTERNATIONAL  ORGANIZATION 


I 


^M 


the  States  — and  only  States,  not  the  citizens  or  inhabitants  thereof,  could 
conclude  treaties.     Thus  it  seemed  necessary  to  the  members  of  the  convention 
that  the  legislative  branch  should  participate  in  the  exercise  of  this  power  inas- 
much as  treaties  very  frequently  if  not  generallv  require  legislation  to  carry 
them  into  eflfect.     The  cooperation  of  both  branches  of  the  legislature  might 
therefore  have  been  required,  the  more  especially  so.  as  by  the  great  compromise, 
revenue  bills  could  only  originate  in  the  House  subject  to  amendment  or  modi- 
fication  in  the  Senate.     The  lower  house  therefore  could  have  claimed  a  hand 
in  the  transaction,  as  it  might  be  as  unwilling  to  pass  an  appropriation  to  carry 
a  treaty  into  effect,  although  approved  or  modified  by  the  Senate,  as  if  the  pres- 
ident alone,  without  the  concurrence  of  the  Senate,  had  negotiated  the  treaty.' 
There  were  other  views  of  this  question  which  weighed  heavily  with  the 
members.     The  Senate,  as  expected,  would  always  he  a  small  body  in  com- 
parison with  the  House  of  Representatives,  an.l  matters  of  great  delicacy, 
such  as  foreign  affairs,  could,  it  was  felt,  be  best  determined  in  a  bodv  of 
restricted  membership,  especially  as  it  was  to  possess  advisorv  as  well  as  ratify- 
ing qualities.     Again,  the  States  were  expressly  renouncing  the  right  to  con- 
clude treaties  and  conventions  with  foreign  powers,  which,  as  free,  sovereign 
and  independent  States,  they  had  possessed.     By  a  happy  device  the  president, 
the  general  agent  of  the  States,  now  conducts  the  negotiations  with  foreign 
powers,  and  the  Senate,  as  the  represertative  of  the  States,  acts  as  an  advisory 
ooily  and  as  a  check  upon  his  action.     That  the  advisability  of  the  transaction 
fhil'J^''  ,^'^'''*°"  observed   that  the   Senate    represented   the   States  alone    and  that   for 

:;.kt  p.rr.Vi.S.i''!;;  'hTJ™;;;;;'™""  ■""■""•  •""  ""• ""  ••■ "» "■■""• 


CtEATION   or  THE  EXECUTIVE 


199 


be  beyond  question  and  that  mere  majorities  should  not  control,  the  approval 
of  two-thirds  of  the  senators  present  was  required  for  approval  of  the  treaty 
or  convention  submitted. 

The  president,  however,  does  not  ordinarily  negotiate  directly  with  foreign 
countries,  but  indirectly  by  means  of  officers  of  the  United  States.  The  fjues- 
tion  naturally  and  inevitably  arose  as  to  the  appointment  of  officers  both  to 
aid  the  president  and  to  carry  out  the  provisions  of  the  Constitution  in  this 
and  in  other  respects.  At  one  time  it  was  projiosed  that  they  l)e  chosen  by  the 
Senate:  but  ultimately  the  convention,  while  reserving  the  right  on  the  part  of 
the  legislature  to  determine  the  mode  of  apix)iniment.  other  than  those 
thought  to  be  essemial  and  therefore  specified  in  the  Constitution,  vested  their 
appointment  in  the  president  in  the  first  instance,  subject  to  ccnfinnation  in 
the  Senate,  as  it  seemed  appropriate  that  persons  to  act  as  officers  of  the 
United  States  should  be  passed  upon  and  confirmed  by  the  branch  of  the  gov- 
ernment representing  the  States.  The  convention,  in  vesting  the  appoint- 
ment of  officers  in  the  president  subject  to  confirmation  by  the  Senate,  seems 
to  have  had  in  mind  the  practice  of  Massachusetts,  a  practice  which  was  specifi- 
cally called  to  its  attention  by  Mr.  Gorham.  with  the  result  that  the  power  was 
happily  at  hand  and  in  the  following  manner : 

He  sh.ill  nominate,  and  by  and  with  the  .\dvice  and  Consent  of  the  Senate, 
shall  appoint  Ambassadors,  other  public  Ministers  and  Consuls  Judgfs  of 
the  supreme  Court,  and  all  other  Officers  nf  the  United  States,  whose  Aiipoint- 
nicnts  are  not  he: tin  otherwise  provided  for,  and  which  shall  be  estab!i-;hed 
by  Law:  but  the  Congress  may  by  I..n\v  vc^^t  the  .Appointment  of  sucii  inferior 
( )fticers,  as  they  thmk  proper,  in  the  President  alone,  in  the  Courts  of  Law, 
or  m  the  Heads  of  Departments.' 

It  was  natural,  under  these  circumstances,  that  he  should  Ix;  empowered  to 
commission  all  officers  of  the  United  States,  that  he  should  receive  ambassa- 
dors and  other  public  ministers,  inasmuch  as  he  himself  was  charged  with  the 
conduct  of  foreign  relation ;;  that  he  should  from  time  to  time  give  to  the 
Congress  "  information  of  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and  expedient;  "  and, 
in  view  of  the  experience  of  the  colonies  and  the  provisions  to  be  found  in  the 
constitutions  of  the  States,  that  he  should  "  on  extraordinary  occasions,  con- 
vene Ijoth  houses,  or  either  of  them,  and  in  case  of  disagreement  between  them, 
with  respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time 
as  he  shall  think  proper."  ,\s  executive  of  the  United  States  it  was  highly 
desirable  that  he  should,  in  the  language  of  the  Constitution.  "  take  care  that 
the  laws  be  faithfully  executed." 

If  this  were  all.  the  eighth  of  Mr.  Randolph's  resolutions  would  have  been 


» .XriWe  I!,  Section  2,  of  the  Coriititulioii. 


200 


THE   UNITED  STATES:   A   STLDY   IN    INTERNATIONAL  OtGANIZATION 


nv 


A  (  h«k 
l-riitlalurc 


overlooked,  although  the  president  would  indee<l  enjoy  a  general  authority  to 
cxeaite  the  national  laws.  "  enjoy  the  executive  rights  vestcti  in  Congress  by 
the  Confederation."  in  addition  to  others  which  could  not  well  exist  Inrcause 
of  a  defect  of  power  in  the  Congress  under  the  Articles  of  Confederation 
And  It  may  l)erhaps  be  said  that  the  eighth  resolution  was  .nie  of  the  most 
difficult  which  confronted  the  convention,  and  one  which,  at  the  same  time, 
was  not  the  least  successfully  met  and  solveil. 

The  necessity  was  felt  on  all  sides  to  have  some  check  upon  the  legislative, 
just  as  there  was  a  check  upon  the  executive.     Wise  laws  an(i  unwise  statutes 
could  l)e  passed  by  the  national  legislature  as  well  as  bv  the  legislatures  of  the 
States,  opjwsed  to  the  Constitution.     This  the  eighth  and  fourteenth  of  Mr. 
Randolph's  resolutions  (which  can  1*  called  the  large  State  plan),  as  well  as 
tho  sixth  of  Mr.  Patterson's  resolutions  (which  mav  lie  called  the  small  State 
plan),  sought  to  obviate.     The  colonies  had  had  experience  in  both  these 
matters.     The  King  in  Council  had  passed  u\nyn  acts  ol  the  colonics  in  some 
ca.>^es  iK-fore  they  U-came  law;  in  other  cases  rejected  them  within  a  prescrilwd 
period,  and  set  aside  decisions  of  courts  of  justice  based  ui^on  alleged  laws 
of  the  colonies  in  e.xcess  of  the  grant  of  power  contained  in  the  charter   or 
m  mstructiuns  from  the  Crown.     This  power  of  the  King  in  Council  must 
on  the  whole  have  iK-en  reaMmably  exercised,  inasmuch  as  the  memlwrs  of 
the  convention   fretpiently  referred   to  it   without  criticism   or  disapproval. 
Indeed  the  local  statesmen  of  the  day  retained  this  right  or  prerogative  in 
various  forms  in  the  constitutions  of  the  several  States  when  thev  became 
independent  political  commnnitiev     Projects  of  the  large  and  the  small  States 
contaming  provisions  to  the  sanu    .  tTect  can  1^  taken  as  an  opinion  amount- 
ing to  a  conviction  that  some  expedient  or  device  of  this  kind  was  felt  to  \ye 
es.sential  to  the  execution  of  the  proposed  Constitution,  just  as  it  was  to  the 
cunsfutions  of  the  States  and  to  the  colonies  under  charter  or  governed 
directly  by  instruction>  from  the  Crown.     The  idea  was  an  especial  favorite 
with  Mr.  Madison  and  tlu.se  of  his  school  of  thought.     The  eighth  of  Mr. 
Randolph's  rcsoUitivms  could  In;  safely  ascrik-d  to  Mr.  Madison  on  the  evi- 
dence of  autliorship  contained  in  his  correspondence  with  Mr.  Randolph  and 
with  General   Washington   in  the  months  preceding  the  Convention.'     The 
principle  was  sound  but  the  method  was  faulty. 

Admitting  the  necessity  of  .-.ome  check  upon  the  legislature,  there  were 
strong  reasons  for  lodging  it  in  the  hands  of  the  executive.  This  would  in- 
deed be  cooperation  with  the  legislature  in  the  framing  of  laws,  violating  to  a 
certain  degree  the  reparation  of  functions  which  had  l)een  adopted  as  a  funda- 
mental principle  of  the  proposed  Constitution.     It  would  l)e  a  further  viola- 

ed  'vol   'if ',!,■■  'r/'ii;^"'"'   [^i""!:'''^''-  •■\f,':"  f-.  '7«7.  The  irrili„ps  of  James  Madi.u,,,.  Hunt 
eU.,  Vol.  II,  i>p.  .i36-J40.:  ami  ti>  Cenree  Washmetnn.  April  Ifi,  VH7,  /.'.;,;.,  j,),,  ;!44-352. 


CIBATION  or  THE  CXECL'TIVB 


201 


tion.  and  indeed  a  very  serious  one.  if  the  judiciary,  charged  with  the  interpre- 
tation of  the  laws,  shoulil  be  required  ti>  participate  with  the  legislature  and 
executive  in  their  making.  Therefore,  after  much  discussion,  debate  and 
heart-burning  on  the  part  of  Messrs.  Madison  ami  Wilson,  the  president  was 
given  a  veto  upon  the  i)ro|K)sed  legislation  of  C'ctngrcss.  sejiarate  ."ml  distinct 
from  the  judiciary.  Article  3  of  the  Constitution  of  the  State  of  New  Vork, 
eliminating  therefrom  the  cooperation  of  the  judiciary,  had  furnished  a  pre- 
cedent which  Massachusetts  adopted,  freed  from  the  cooperation  of  the  judges, 
in  .Section  I,  Article  11  of  the  ('iin>titutiiin  of  that  commonwealth.  The  .\ew 
Vork  exiwdient  was  to  have  even  a  larger  influence  ami  application.  Substi- 
tuting the  president  for  the  council,  the  I'ederal  Convention  literally  took  this 
provision  froni  the  following  passage  of  Article  3  of  the  Constitution  of  the 
State  of  New  Vork  of  April  20.  1777: 

And  that  a'll  bills,  which  have  passed  the  senate  and  assembly,  shall,  before 
they  Wonie  laws,  tv-  presented  to  the  said  council  for  their  rcvisiil  and  con- 
sideration;  and  if  upon  such  revision  and  consideration,  it  >houUl  appear 
improper  to  tbo  said  council,  or  a  majority  of  tlicni,  that  the  >aid  bill  should 
become  a  law  of  this  state,  that  they  return  the  same,  togt-tber  with  ibeir 
objections  thereto  in  writing,  to  the  senate  or  house  of  assembly,  in  whichso- 
ever the  same  shall  have  oriKin.ited,  who  shall  enter  the  objections  sent  down 
by  the  council,  at  largo,  in  llii-ir  minutes,  and  proceed  to  reconsider  the  said 
bill.  Hut  if  after  such  reconsideration,  two-thirds  of  the  s.-ijd  senate  or 
house  of  .issembly.  shall,  notwithstanding  the  said  objections.  aj,'ree  to  pass 
the  same,  it  shall,  together  with  the  objections,  be  seiU  to  the  other  branch 
of  the  leRisl.iture.  where  it  sb.ill  ahn  be  reconsidered,  and  if  approved  by  two- 
thirds  (if  the  members  present,  shall  be  a  law. 

.And  in  order  to  pre.ent  any  itnnecessarv  delavs,  be  it  further  ordained, 
that  if  any  bill  shall  not  Ik-  returned  bv  ilie  council  within  ten  davs  after 
It  shall  have  been  presented,  the  same  shall  Iw  a  law.  unless  the  lejiislaturc 
shall,  by  their  adjournment,  render  a  return  of  the  said  bill  within  ten  days 
impracticable:  in  which  case  the  bill  sh.dl  be  returned  on  the  first  day  of 
thp  meeting  of  the  legislature,  after  the  expiration  of  the  said  ten  days." 

So  much  for  the  act  of  Congress,  which  the  presiilent  may  deem  unwise  or 
inconsistent  with  the  terms  of  the  Constitution. 

A  more  delicate  and  diftkult  (juestion  arose  in  the  case  of  an  act  of  a 
State  legislature,  which  might  l)e  unwise  and,  in  addition,  inconsistent 
with  the  terms  of  the  Constitution  or  an  act  of  Cimgress  or  a  treaty  of  the 
United  States,  The  view  which  ultimately  prevailed  was  stated  in  the  session 
of  August  2i,  1787,  by  Mr.  Sherman,  who  thought  a  negative  unnecessary, 
"  the  laws  of  the  General  Government  Injing  Supreme  &  paramount  to  the 
State  laws  according  to  the  plan  as  it  now  stands."  ^  Mr.  Wilson,  as  set  as 
Mr.   Madison  upon  the  council  of  revision  as  a  check  upon  the  States,   is 

»  Thf  Cnn.uilulii'tis  of  the  Several  Indffendi-Hl  Slalfs.  1781.  pp.  63-4. 
■  D'liUmtiihi'  \   i'hiUiiy.  \'oi.  iii.  pp.  COI-2. 


202 


¥V\* 


F^rfulivr 


K  Ini.|n.il9 


THE   INITEO  states:    A   STIDY   IN    INTEHNATIOKAL  OUCANIZATION 


reported  by  the  latter  to  the  effect  that  he  "  considered  this  as  the  key-stone 
wante<l  to  compleat  the  wide  arch  of  Government  we  are  raising.  The  fH)wer 
of  solf-<lefcnce  had  been  urged  as  necessary  for  the  State  r.ovemme;its  — 
It  was  equally  necessary  for  the  General  Government.  The  firmness  of 
Judges  is  not  of  itself  sufficient  —  Something  further  is  requisite  —  It  will  l« 
better  to  prevent  the  passage  of  an  improper  law,  than  to  declare  it  void  when 
passed."  '  To  which  Mr.  Rutle.lge  of  South  Carolina  replied,  apparently  with 
some  heat,  for  he  was  not  of  an  uncholcric  disposition,  that  "  If  nothing  else, 
this  alrnc  would  damn  and  ought  to  damn  the  Constitution.  Will  any  State 
ever  -  c  to  l)e  Ixiund  hand  &  foot  in  this  manner,  ft  is  worse  than  making 
mere  corporations  of  them  whose  bye  laws  would  not  be  subject  to  this 
shackle." 

Tile  way  out  was  contained  in  the  sixth  of  Mr.  Patterson's  resolutions,  pro- 

v.dmK  "  that  all  Acts  of  the  L'.  States  in  Cong* and  all  Treaties  made 

&  ratified  un<le  the  authority  of  the  U.  States  shall  l)c  the  supreme  law  of 
the  respective  States  so  far  forth  as  those  .Acts  or  Treaties  shall  relate  to  the 
sai.l  States  or  their  Citizens,  and  that  the  Judiciary  of  the  several  States  shall 
be  l«und  thereby  in  their  decisions,  any  thing  in  the  respective  laws  of  the 
Individual  States  to  the  contrary  notwithstanding."  »  With  slight  modifica- 
tions this  clause  Infcame  .\rticle  VI  of  the  perfected  Constitution,  leaving  with 
the  presuient  what  may  1*  calle.l  an  e.xecutive  veto  of  the  acts  of  Congress  and 
with  the  ju.luiary  a  judicial  veto  of  the  acts  of  the  Congress  and  of  the  States 
inconMstent  with  the  Constitution  of  the  Union,  whether  embodied  in  the  State 
constit"»ions  o'  in  their  ordinary  laws. 

The  .resident,  it  will  Ik  recalled,  is  charged  with  the  execution  of  the  laws 
of  the  Lnited  States,  and  it  (1.3es  not  require  argument  that  these  should  \k 
executed,  otherwise  their  enactment  would  be  worse  than  futile  It  is  how- 
ever, t.,  Ih;  iHirne  in  mind  that  the  governme,  t  created  bv  the  Constitution  was 
one  wuhout  prece.lent,  and  that  a  principle  was  fortunatelv  found  which  was 
meant  to  prevent  the  impracticable  methcxl  of  execution  by  force  against  a 
i>tate.  by  having  the  laws  .operate  directly  on  the  individual,  by  virtue  whereof 
a  private  cituen  violating  the  law  could  be  arrested  and  punished,  and  an 
ofticial.  national  or  Stale,  violating  the  law  coul.l  l,e  restraint  under  a  govern- 
ment ot  laws,  not  of  men.  Indeed.  Mr.  Madi.son  ba.sed  the  distinction  lx:tween 
a  national  an.i  a  federal  government  on  the  fact  that  the  former  operated  upon 
individuals,  whereas  the  latter  operate.l  upon  the  States,  and  although  this 
distinction  did  not  appear  clearly  in  the  text  of  Mr.  Randolph's  resolutions,  it 
may  well  have  been  in  the  minds  of  the  X'irginian  members  who  stood  sponsor 
for  thenx 


'  PiHumrnlary  history.  Vol.  iii,  p.  602. 
'  lOiil..  pp.  12/-8. 


CBE.XTION   or  THE   BXtCl'TIVK 


203 


In  the  plan  of  the  \'irjfinian  dflcpation  which  Mr.  Randolph  laid  liefore 
the  convention  on  May  2*)th,  the  last  clause  o.'  the  sixth  res.ilution  authorized 
the  national  legislature  "  to  call  forth  the  force  of  the  L'nion  ag".  any  niemlwr 
of  the  Union  failing  to  fulfill  its  duty  under  the  articles  thereof."  '  a  proposi- 
tion likewise  conUined  in  the  New  Jersc\  plai..  introduced  on  June  15th  by 
William  Patterson  of  that  State,  authorizing  the  federal  govesnment  "  to  call 
forth  ye  power  of  the  Confederated  States,  or  so  much  thereof  as  may  I* 
necessary  to  enforto  and  cumjicl  an  olwdience  to  such  Acts,  or  an  Observance 
of  such  Treaties,"  * 

On  the  30th  of  May,  that  is  to  say  the  very  next  day  after  Mr.  Randolph's 
resolutions  were  introijuced,  Mr.  Mason  of  Virginia  observed,  as  reported  by 
Mr.  .M.idison,  "that  the  present  confederation  was  not  only  deficient  in  not 
providing  for  coercion  &  punishment  ag".  delinquent  States;  but  argued  very 
cogently  that  punishment  could  not  in  the  nature  of  things  tw  executed  on  the 
States  collectively,  and  therefore  that  such  a  Gov',  was  necessary  as  could 
directly  operate  on  individuals,  and  would  punish  those  only  whose  guilt  re- 
(|uired  it."  • 

A  very  little  experience  of  the  temper  of  the  Convention  convinced  Mr. 
Madison  of  the  impracticability  of  this  provision,  although  \w  himself  is 
credited  with  the  authorship  of  the  Virginian  plan,  so  that  on  May  3Nt,  but 
two  d.  ys  after  the  intrtxluction  of  the  resolution,  he  changed  his  nr"d.  as 
appears  from  the  following  extract  from  the  debates : 

The  last  clause  of  Resolution  6  aiuhorizing  an  exertion  of  the  force  of 
the  whole  ag".  a  dtlimiuent  State  came  nixt  into  consideration. 

>!'.  Madison  observed  that  the  more  be  rctlectcd  on  the  use  of  force, 
the  more  he  doubted  the  practical)ility,  the  justice  and  eflficacy  of  it  wiien 
applied  to  people  collectively  and  not  individuallv.— a  L'nion  of  tbe  Stritcs 
containing  such  an  ingredient  seemed  to  provide  for  its  own  destruction. 
The  use  of  force  ae".  a  State,  would  look  more  like  a  declaration  of  war, 
than  an  mtliction  of  punishment,  and  would  probahlv  be  considered  by  the 
party  attacked  as  a  dissolution  of  all  previous  compacts  bv  which  it  niight 
be  bound.  He  hoped  that  such  a  system  would  l)e  framed' as  might  render 
this  recourse  unnecessary,  and  moved  that  the  clause  Ije  iwstponed."  * 

Mr.  Madison  informs  us  that  "  this  motion  was  .^reed  to  nem.  con  "  It 
does  not  figure  in  the  Constitution  for  the  reasons  disclosed  and  set  forth  in 
the  delates. 

A  few  days  later,  to  be  specific  on  June  8th,  Mr.  Madison  recurred  to  the 
subject  and  confirmed  his  recantation  of  the  use  of  force  against  a  State. 
Thus: 

'  D'jciifenlary  History,  Vol.  iii,  p.  18. 
'Ibi,'    I,   128. 
•/fci      !•  22. 


Thr  I'm 

nf  I'nrct 
\uatri«t 
a  Male 


if 


i»vv 


204       THE  LNirEo  states:  a  study  in  international  organization 

Could  the  national  resources,  if  exerted  to  the  utmost  enforce  a  national 
decree  ag".  Mass",  abetted  perhaps  by  several  of  her  neighbours'  It  w" 
not  be  possible.  A  small  proportion  of  the  Community  in  a  compact  situa- 
tion, act:  ng  on  the  defensive,  and  at  one  of  its  extremities  might  at  any  time 
bid  defiance  to  the  National  authority.  Any  Cov'.  for  the  U  State,,  formed 
on  the  supjwsed  practicability  of  using  force  ag".  the  ut  ,  ivii-nal  pro 
ceed.ngs  of  the  States.  W.  prove  as  visionary  &  fa' .a.ous  ...  -i.c  To,-' 
of  Cong*.    »  -      . 


m 


The  \ iews  thus  expressed  by  Mr.  Madison  survive-,  li  e  ronveatic  .  ... 
which  -hey  were  formed  and  stated,  as  appears  from  the  foliown.j  extract 
from  .-.  letter  dated  October  24,  1787,  written  after  its  adjournment  to  his 
friend  1  homas  Jefferson  : 

A  rnluntary  observance  of  the  Federal  law  bv  all  the  members  could 
never  l)e  hopo.l  for.  A  compuhhc  one  could  evidently  never  be  reduced 
to  pr.icttce.  .-ind  if  it  could,  involved  equal  calamities  to  the  innocent  &  the 
guilty,  the  necessity  of  a  military  force  both  obnoxious  &  dangerous  and  in 
general  a  scene  resembling  much  more  a  civil  war  than  the  administration 
ol  a  regular  (lovernment. 

Hence  was  embr.iced  the  alternative  of  a  Government  which  instead  of 
operating  on  the  States,  should  operate  without  their  intervention  on  the 
individuals  composing  them;  and  hence  the  change  in  ihe  principle  and 
proportion  of  representation." 

So  much  for  the  Father  of  the  Constitution.  Next,  as  to  its  classic  ex- 
pounder. In  introducing  on  June  18th  his  plan  of  a  national  and  highlv 
centralized  form  of  government,  Alexander  Hamilton  enumerated  "the  gre.it 
and  essential  principles  necessary  for  the  support  of  Government."  Among 
these  -'great  and  essential  principles  "  he  mentioned  force,  of  which  he  said: 

I'orce  by  which  may  be  understood  a  coirtion  of  laM  or  coertion  of  arm^ 
I  ollg^  h.ue  not  the  forniir  except  in  few  cases.  In  particular  States,  this 
coerci  n  is  nearly  sufficient ;  tlio'  he  held  it  in  most  cases,  not  entirely  so.  .\ 
cert.Mii  portion  of  military  force  is  absolutely  necessary  in  large  communities. 
.Mas>-,  IS  now  feeling  this  ntcessitv  &  making  provision  for  it.  Rut  how 
can  tins  force  be  exerted  on  the  States  collectively.  It  is  impossible  It 
aiiioiints  to  a  war  between  the  parties.  Foreign  powers  also  will  not  he 
Idle  spectators.  They  will  interix)se,  the  confusion  will  increase,  and  :i 
(lissohition  of  the  I'nion  ensue.'' 

Colonel  Hamilton,  as  in  the  case  of  Mr.  Madison,  dung  to  the  views  which 
he  had  expressed  in  the  convention,  and  expressed  them  with  peculiar  and 
convincing  force  in  Tlw  rr<l,'ralist,  written  to  justify  the  Constitution,  which 
is,  as  is  well  known,  the  joint  product  of  the  minds  and  hands  of  Messrs.  Ham- 

'  Pnniiiu-nlary    /list<r\.   Vol     iii.    p.    89. 
'-•  '      liiiifjs  of  MaJisiui,  iliitit  cil.,  Vol.  V,  p.  19. 
cumcnldfy  History,  \o\.  iii,  p.  141. 


CREATION   OF  THE  EXECUTIVE 


205 


I 


ilton,  Madison  and  Jay.     In  the  following  passage  from  The  Federalist,  the 
Colonel  pays  his  respects  to  force: 

Whoever  considtrs  the  populousness  and  strength  of  several  of  these 
states  singly  at  the  present  juncture,  and  looks  forward  to  what  they  will 
become,  even  at  the  distance  of  half  a  century,  will  at  once  dismiss  as  idle 
and  visionary  any  scheme,  which  aims  at  regulating  their  movements  by 
laws,  to  oi)crate  upon  them  in  their  collective  capacities,  and  to  he  executed 
by  a  coercion  applicable  to  them  in  the  same  capacities.  A  project  of  this 
kind  is  little  less  romantic  than  the  monster-taming  spirit,  attributed  to  the 
fabulous  heroes  and  dcnii-gods  of  antiquity. 

I'Acn  in  those  confederacies  which  have  been  composed  by  members 
smaller  than  many  of  our  counties,  the  principle  of  legislation  for  sovereign 
states,  supported  by  military  coercion,  has  never  been  found  effectual.  It 
has  rarely  been  attempted  to  be  employed,  but  against  the  weaker  members ; 
and  in  most  instances  attempts  to  coerce  the  refnactorv  and  disobedient, 
have  b(<n  the  signals  of  bloody  wars ;  in  which  one  half  of  the  confederacy 
has  dis])l.iyed  its  banners  against  the  other.' 

And  on  a  third  occasion,  when  converting  to  the  proposed  Constitution  a 
hostile  majority  of  the  New  York  Convention,  by  force  of  argument,  not  by 
force  of  arms.  .Mexander  Hamilton  restated  his  views  on  this  interesting  sub- 
ject.    In  the  first  place,  he  declared  it  impossible  to  coerce  States.     Thus : 

If  you  make  requisitions,  and  they  are  not  complied  with,  what  is  to  be 
done?  It  has  been  observed,  to  coerce  the  states  is  one  of  the  maddest 
proi^ects  that  was  ever  devised.  .\  failure  of  compliance  will  never  be 
confmed  to  a  single  state.  This  being  the  case,  can  we  suppose  it  wise 
to  hazard  a  civil  war?  * 

In  the  next  place,  he  expressed  the  opinion  that  the  States  themselves  would 
not  agree  to  coerce  others.     Thus : 

Rut  can  we  believe  that  one  state  will  ever  suffer  itself  to  be  used  as  an 
instrument  of  coercion?    The  thing  is  a  dream;  it  is  impossible.^ 

To  the  same  effect  is  the  language  of  George  Mason,  the  bitterest  opponent 
of  the  Constitution,  as  Messrs.  Madison  and  Hamilton  v-  its  strongest  ad- 
vocates. On  the  matter  of  force,  the  opponents  an<  '  advocates  agreed. 
Thus,  Mr.  Mason  said  on  June  20th : 

It  was  acknowledged  by  Mr.  Patterson  that  his  plan  could  not  be  enforced 
without  military  coertion.  Does  he  consider  the  force  of  this  concession. 
The  most  jarring  elements  of  nature ;  fire  &•  water  themselves  are  not  more 
incompafil)le  tha(nl  such  a  mixture  of  civil  liberty  and  milit.ary  execution. 
Will  the  militia  march  from  one  State  to  another,  in  order  to  collect  the 
arrears  of  taxes  from  the  delinquent  members  of  the  Republic?    Will  they 

»  The  Federalist,  1802,  Vol.  i,  p.  102.     Paper,  No.  xvi. 

-  Joiiatlian  F-lliot,  Debates  in  the  Several  State  Conzentions,  1836,  Vol.  ii.  pp.  Z32-3 

3 //■!</.,  p.  233. 


Hilt 


1^|» 


206  THE    LMTEl)   STATES:   A   STfDY   IN    INTERNATIONAL  ORGANIZATION 

maintain  «n  army  for  this  purpose?  Will  r  it  the  citizens  of  the  invaded 
State  assist  one  another  till  they  rise  as  one  Ian.  and  shake  oflf  the  Union 
altogether?  Rehellion  is  the  only  case  in  which  the  military  force  of  the 
State  can  be  properly  exerted  ag".  its  Citizens.' 

Finally,  lest  the  views  of  the  statesmen  of  the  Revolution,  the  founders  of 
the  Republic,  and  tK  framers  of  the  Constitution,  become  wearisome,  but  one 
further  quotation  is  made.  In  advocating  the  ratification  of  the  Constitution 
by  the  Connecticut  Convention,  Oliver  Ellsworth,  with  that  fine  poise  and 
balance  of  mind  characteristic  of  the  senator  and  of  the  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  pointed  out  that  nothing  would  prevent 
the  States  from  falling  out  if  they  so  desired,  saying  on  this  point: 

If  the  United  States  and  the  individual  states  will  quarrel,  if  they  want 
to  fight,  they  may  do  it,  and  no  frame  of  government  can  possibly  prevent  it.' 

In  advocating  the  need  of  a  coercive  principle,  he  added : 

We  all  see  and  feel  this  necessity.  The  only  question  is.  Shall  it  be  a 
coercion  of  law,  or  a  coercion  of  arms?  There  is  no  other  possible  alterna- 
tive. Where  will  those  who  oppose  a  coercion  of  law  come  out?  Where 
will  they  end?  A  necessary  consequence  of  their  principles  is  a  war  of  the 
states  one  against  the  other.  I  am  for  coercion  by  law  —  that  coercion 
which  acts  only  upon  delinquent  individuals.  This  Constitution  does  not 
attempt  to  coerce  sovereign  bodies,  states,  in  their  political  capacity.  No 
coercion  is  applicable  to  such  bodies,  but  that  of  an  armed  force.  If  we 
should  attempt  to  execute  the  laws  of  the  Union  by  sending  an  armed  force 
against  a  dclin(|uent  state,  it  would  involve  the  good  and  bad,  the  innocent 
and  guilty,  in  the  same  calamity." 

It  was  foreseen  that  force  might  be  necessary  to  execute  the  laws  of  the 
Union,  and  therefore  Congress  was  specifically  empowered  by  a  clause  of  the 
eighth  section  of  the  first  article  "  to  provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  suppress  insurrections  and  repel  invasions." 
But  force  is  to  be  used,  in  accordance  with  the  views  previously  set  forth, 
against  individuals,  whether  they  act  singly  or  in  small  groups,  as  a  mob  or  in 
organized  masses  as  insurgents.  The  individual,  not  the  State,  suffers;  the 
individual,  not  the  State,  is  coerced.  At  least  this  seems  to  have  been  the  view 
of  the  framers  of  the  Constitution  and  it  has  been  the  practice  of  the  govern- 
ment of  the  more  perfect  Union  of  the  Xorth  American  States.  In  the  session 
of  the  l-ederal  Convention  of  July  14,  1787,  Mr.  Madison,  adverting  to  this 
peculiarity  of  the  proposed  government  for  the  union  of  the  States,  "  called 
for  a  single  instance  in  which  the  Gen".  Gov',  was  not  to  operate  on  the  people 
individually,"  and  continued,  without  an  answer  having  been  interposed  to  his 

•  Documentary  History.  Vol.  iii,  pp.  171-2. 
»  Elliot,  Debates,  Vol.  ii,  p.  196. 
>  Ibid.,  p.  197. 


CREATION   OF  THE  EXECUTUE 


207 


11 


question,  "The  practicabilif   of  makinj  laws,  with  coercive  sanctions,  for 
the  States  as  political  bodies  has  been  exploded  on  all  hands."  ^ 

1  Dotumtntary  History,  Vol.  iii,  p.  340. 


im« 


THE  FIRST  PERMANENT  TRIBUNAL  OF  THE  STATES 

Should  not  a  court  be  established  by  authority  of  Congress,  to  take  eoyni/ance  of  prizes 
made  by  the  Continental  vessels?  Whatever  the  mode  is,  which  they  arc  pleased  to  adopt, 
there  is  an  absolute  necessity  of  its  beiiiK  speedily  determined  on ;  for  I  cannot  spare  time 
from  military  affairs,  lo  gi\e  proper  attention  to  these  matters,  ii..\lra<l  from  a  li-llcr  of 
Ci'iicrat  Washington  from  Caiiif  al  Cainlindt^i-.  to  the  I'rcsiJi'nt  of  Coiinriss,  Xozembcr  ti, 
I7T?-  II  orthmtili'n  Chaumcy  h'ord,  Editor.  The  \\  ruings  of  Geurnr  it'aslim:^ton,  I'ol.  Ill, 
idf.V.  ft-  ^i3-^'4) 

Kesi'l:cd.  That  a  committee  be  appointed,  to  take  into  consideration  so  much  of  said 
Ic.ttr  as  relates  to  the  disposal  of  such  vessels  ar  I  cargoes  belonKint,'  to  the  enemy,  as  shall 
fall  into  the  hands  <>f.  or  be  taken  by.  the  inhabitants  of  the  I'nited  Coloiii.  s, 

Th.it  the  Committee  consist  of  7.  (Journals  of  III.-  Conlim-ulal  Con^r.-ss,  Session  of 
Sovemhcr  IT,  iTTi,  Library  of  Congrfss  edition.  Vol.  III.   /yo.i,  /•/■.  iV-A''*'  • 

4.  That  it  be  and  is  hereby  recommend,  d  to  the  several  legislatures  in  the  United  Colo- 
nies, as  soon  as  possible,  to  erect  courts  of  Justice,  or  give  jurisdiction  to  the  courts  now  in 
being  for  the  purpose  of  determining  conct ruing  the  captures  to  be  made  as  aforesaid,  and 
to  provide  that  all  trials  in  such  case  be  had  by  a  jury  under  such  qualifications,  as  to  the 
respective  legislatures  shall  seem  expedient. 

5.  That  all  prosecutions  shall  be  commenced  in  the  court  of  that  colonv  in  which  the 
captures  sliall  be  made,  but  if  no  such  court  be  at  that  time  erected  in  tlie  said  coloity,  or 
if  the  capture  be  made  on  open  sea,  then  the  prosecution  shall  be  in  the  court  of  such 
colony  as  the  cajitor  may  find  most  convenient,  provided  that  nothing  contained  in  this 
resolution  shall  t)e  construed  so  as  to  enable  the  captor  to  remove  his  prize  from  any  colony 
competent  to  determine  concerning  the  seizure,  after  he  shall  have  carrieil  the  vessel  so 
seized  within  any  harbour  of  the  same. 

6.  That  in  all  cases  an  appeal  shall  be  allowed  to  the  Congress,  or  such  person  or  per- 
sons as  they  shall  appoint  for  the  trial  of  appeals,  provided  the  appeal  l>e  demanded  within 
five  days  after  definitive  sentence,  and  such  appeal  lie  lodged  with  the  secretary  of  Congress 
within  forty  days  afterwards,  and  provided  tne  party  appealing  shall  give  security  to  prose- 
cute the  said  appeal  to  effect,  and  in  case  of  the  death  of  the  secretary  during  the  recess  of 
Congress,  then  the  said  appeal  to  be  Indeed  in  Congress  within  20  days  after  the  meeting 
thereof.  (Journals  of  the  Continental  Con.i;ress,  Session  of  November  !$•  I7T5,  l-il'rary  of 
Congress  edition,  I'ol.  III.  /yo,5,  />/>.  .?".?-.?/"7. ) 

The  resolves  relative  to  captures  made  by  Continental  armed  vessels  only  want  a 
court  established  for  trial,  to  make  them  complete.  This,  I  hoiK-.  will  be  soon  done,  as  I 
have  taken  the  liberty  to  urge  it  often  to  the  Congress.  (E.vtrcut  from  a  letter  of  Oeneral 
Washington,  from  Cambridge,  to  the  President  of  the  Congress.  Deeemhcr  14,  177$. 
Worlhinglon  Chauneey  Ford,  Editor,  The  Writings  of  George  Washington,  I'ol.  Ill,  18S9, 
P-  -'74- ) 

Resolved.  That  a  standing  committee,  to  consist  of  five  members,  be  appointed  to  hear 
and  determine  upon  appeals  brought  against  sentences  passed  on  libels  in  the  courts  of 
Admiralty  in  the  respective  states,  agreeable  to  the  resolutions  of  Congress ;  and  that  the 
several  appeals,  when  lodged  with  the  secretary,  he  by  him  delivere<l  to  them  for  their  final 
determination:  .  .  .  (Journals  of  the  Continental  Congress,  Session  of  January  jo,  1777, 
Library  of  Congress  edition,  I'ol.  I'll,  l<x>7.  p.  7.1.) 

Article  IX.  The  United  States  in  Congress  assembled,  shall  have  ttje  sole  and  exclu- 
sive right  and  power  ...  of  establishing  nilts  for  deciding  in  all  ca^es.  what  captures  on 
land  or  water  shall  be  legal,  and  in  what  manner  pri7es  taken  by  land  or  naval  forces  in 
the  service  of  the  United  States  shall  be  diviiled  or  apnropriated  .  .  .  and  establishing 
courts   for   receiving  and   determining   finally    appeals   in   all  cases   of  captures,   provided 

208 


THE   FIRST   PERMANENT   TRIBUNAL  OF  THE   STATES 


209 


that  no  metTiber  of  Congress  shall  be  appointed  a  jiidfre  of  any  of  the  said  courts.  (The 
Articlvs  of  Confi'iU-ralwii  agreed  to  by  the  Con^n-ss.  Xozrmbcr  15,  1777,  RnUed  Statutes 
of  the  inilcd  stales,  1II78.  p.  t^.) 

Resolved.  That  a  court  be  estalilished  for  the  trial  of  all  appeals  from  the  courts  of 
admiralty  in  these  L  nited  States,  111  cases  of  capture,  to  consist  of  three  judges,  appointed 
and  commissioned  by  (.onjjress.  cither  two  of  whum,  in  the  absence  of  the  other  to  hold 
the  said  court  for  the  dcs|iatch  nf  bir^iiuss : 

That  the  said  cmirt  app.iiiit  ihiir  own   register  ■ 

That  the  trials  therein  be  according  to  the  usaRe  of  nations  and  not  by  jury 
Uaunials  of  the  L  ,nu,iunl,,t  Lon-rcss,  Srssi'n  vf  Januarv   /j,   17/io.  Library  of  Congress 
edtliiiti,  I  ol.  \l  I,  K^io.  />.  61.)  J      ,  b      - 

Resnhed.  That  the  stile  of  the  Court  of  Appeals  appointed  by  Congress,  be.  "The  Court 
of  Appeals  in  Cases  uf  Capture.     .  .  . 

A' •■.(.)/.■ .-,/  That  appeals  from  the  courts  of  adnn.^lty  in  the  respective  states,  be  as 
herelnforo,  demanded  within  five  days  after  rletinitive  sentence;  and  in  future  such  appeals 
be  lodged  with  the  register  of  the  Court  of  Appeals  in  cases  of  capture  within  forty  days 
thereafter,  provided  the  party  appealing  shall  give  security  to  prosecute  such  appeal  to 
eticct. 

Resolved,  That  all  matters  respecting  appeals  in  cases  of  capture,  now  depending  before 
Loiigress.  or  the  commissioners  of  appeals,  consisting  of  mcmliers  of  Congress  be  referred 
to  the  newly  erected  Court  of  Appeals,  to  be  there  a<ljtidaed  and  determined  according  to 
law;  and  that  all  papers  touching  appeals  in  cases  of  cantnre.  lodged  in  the  office  of  the 
secretary  of  Congress  be  delivered  to  and  lodged  with  the  register  of  the  Court  of 
Appeals.  (Journa  s  of  the  ( oi,i,„ntt„t  Congress.  Session  of  .\tay  i4.  17S0.  Library  of 
Congress  edition,  I  ol.  XI  II.  iQ/o,  !</•.  4fS,  4S9.)  j      ^      >     ■  i      1 

Section  8.     The    Coiigre.^s    shall    have    Power  ...  To    declare    War,    gram    Letters    of 
-Marque   and    Reprisal,   and   make    Rules   concerning   Captures   on   Land    and    \Va»er- 
(Lonslitutton  of  the  United  Slates,  .-triicle  I.)  <  ■  ■  ■ 

.    S''"'".",?-    The  judicial    Power  shall   extend  ...  to  all   Cases   of  admiralty  and  mari- 
time Jurisdiction.  .  .  .  (t  onslitutinn  of  the  United  Stales.  .-Irticle  l/I.) 

The  district  courts  of  the  fnited  States  are  courts  of  [,ri7c;  and  have  power  to  carry 
into  effect  tlie  sentence'  of  the  ol.l  continental  courts  of  .ippeals  in  priire  causes  (Per 
.Mr.  Chief  Justice  .Marshall  in  Jennings  v.  Carson,  4  Cranch,  j,  decided  in  1807  ) 


^y 


CHAPTER  X 


THE   FIRST   PERMANENT   TRIBUNAL  OF    THE  STATES 


voluntary 
Sflt-ilrtiials  — 
Ir.t  IikIihk 
1  ii^iarmanient 


Iiii'lomatic 


Military 
>ettlemtnt9 


An  examination  of  that  part  of  the  ninth  of  the  Articles  of  Confederation 
relating  to  controversies  and  their  settlement  shows  that  it  deals  with  three 
situations  or  conditions:  first,  prizes  taken  by  land  or. naval  forces;  second, 
the  trial  of  piracies  and  felonies  committed  on  the  high  seas;  third,  contro- 
versies of  all  kinds  between  the  States,  sovereign,  free  and  independent, 
forming  the  Confederation,  styled  in  Article  I,  The  United  States  of  America. 

The  members  of  the  Congress  understood,  or  their  experience  had  taught 
them  by  1777,  when  the  Articles  of  Confederation  were  adopted  by  them  for 
ratification  by  the  States,  that,  although  "  each  State  retains  its  sovereignty, 
freedom,  and  independence,  and  every  power,  jurisdiction,  and  right  which  is 
not  by  this  Confederation  expressly  delegated  to  the  United  States  in  Congress 
assembled,"  it  was  nevertheless  necessary  to  provide  for  certain  things  if  they 
were  to  hold  together  during  the  war  against  the  mother  country.  They 
might  agree  to  use  force  against  Great  Britain,  and,  indeed,  their  union  was 
formed  for  this  purpose ;  but  they  were  unwilling,  as  are  all  sovereign,  free 
and  independent  States,  to  have  force  used  against  themselves.  They  had 
practically  disqualified  themselves  from  settling  disputes  arising  between  them 
by  direct  negotiations,  because  in  Article  VI  they  had  provided  that  "  no  two 
or  more  States  shall  enter  into  any  treaty,  confederation  or  alliance  whatever 
between  them,  without  the  consent  of  the  United  States  in  Congress  assem- 
bled." In  the  same  article  they  had  practically  agreed  to  such  a  limitation  of 
their  forces  as  to  amount  to  disarmament,  providing  that  neither  vessels  of 
war  nor  armed  forces  should  "  be  kept  up  in  time  of  peace  by  any  State,  except 
such  number  only,  as  shall  be  deemed  necessary  by  the  United  States  in  Con- 
gress assembled,  for  the  defence  of  such  State,  or  its  trade."  And  they  drew 
the  logical  conclusion  from  this  provision,  that  no  State  should  engage  in 
war  without  the  consent  of  the  Congress,  unless  it  was  actually  invaded  by 
enemies  or  was  menaced  by  such  invasion. 

The  time-honored  method  of  settling  controversies  l)etween  States  sover- 
eign, free  and  independent,  has  lieen  and  still  is  either  by  diplomatic  negotia- 
tion or  by  armed  coiillict:  and  the  Revolutionary  statesmen  were  intelligent 
enou'di  to  recngnizt  thai,  if  diplomacy  could  not  effect  a  settlement,  and  if  an 


THE    FIRST    PERMANENT   TRIBUNAL  OF  THE   STATES 


211 


Settlement 


..f  the 

Cniifederited 

States 


appeal  to  arms  were  exclu(led,  there  must  lie  a  resort  to  some  method  of  settle- 
ment which  was  neither  diplomatic  nor  military.  They  interposed,  therefore,  ^f^'.fj,' 
between  the  two,  the  judicial  method,  recognizinp,  although  not  appealing  to 
Aristotle  in  confirmation  thereof,  that  "  justice  is  the  Imiuu  of  men  in  States, 
and  the  administration  of  justice,  which  is  the  determination  of  what  is  just, 
is  the  principle  of  order  in  political  society."  They  had  in  mind  a  court  of 
ju.itice,  and  they  so  said.  They  recognized  that  the  court,  to  have  jurisdic- 
tion over  the  States  and  to  bind  their  actions,  could  only  be  created  by  them 
directly,  or  l)y  their  agent  for  this  purpose,  as  they  had  no  superior.  They 
therefore  invested  Congress  with  the  power,  a  Congress  in  which  each  sover- 
eign, free  and  indepentlcnt  State  of  the  Confederacy  had  an  equal  vote,  al- 
though each  might,  according  to  its  pleasure,  send  an  unequal  number  of 
representatives. 

After  having  defined  the  matters  which,  in  the  interest  of  the  States,  had 
to  be  settled  with  those  countries  which  they  considered  foreign  and  those 
which  they  considered,  by  virtue  of  the  Confederation,  as  domestic,  the  Con- 
federated States  authorized  the  Congress  as  their  agent,  or  rather  their  own 
delegates  in  Congress  assembled,  to  appoint  "  courts  for  the  trial  of  piracies 
and  felonies  committed  on  the  high  seas ;  "  to  establish  "  courts  for  receiving 
and  determining  finally  appeals  in  all  cases  of  captures:  "  and.  in  the  matter 
of  disputes  between  the  States  themselves,  to  appoint  "  commissioners  or 
judges  to  constitute  a  court  for  hearing  and  determining  the  matter  in  ques- 
tion." * 

It  is  to  be  observed  that  these  are  likewise  considered  judicial  questions  by 
the  Constitution,  which  succeeded  the  Confederation,  and  that  they  are  either 
referred  to  courts  by  the  Constitution  or  by  act  of  Congress  passed  in  pur- 
suance of  authority  vested  in  that  body  by  the  Constitution.  Therefore,  in 
Section  8  of  Article  I  of  the  Constitution,  vesting  all  the  legislative  power  in 
Congress  which  the  States  cared  to  grant  to  the  L'nited  States,  it  is  said  that 
"  Congress  shall  have  Power  ...  To  define  and  punish  Piracies  and  Felonies 
committed  on  the  high  Seas."  Going  a  step  further,  the  framers  of  the  Con- 
stitution added  "  and  Offenses  against  the  Law  of  Nations ;  *'  and,  in  the 
clause  immediately  following,  the  Congress  is  invested  with  the  power  "  to 
make  Rules  concerning  Captures  on  Land  and  Water."  In  Article  III  of  the 
Constitution  it  is  declared  that  "  the  judicial  Power  of  the  Unitei'  States,  shall 
be  vested  in  one  supreme  Court,  and  in  such  inferior  Courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish,"  in  accordance  with  the  clause 
in  Section  8  of  Article  I,  authorizing  Congress  "  to  constitute  Tribunals  infe- 
rior to  the  supreme  Court." 

After  providing  in  the  1st  section  of  Article  III  for  the  creation  of  a 

'  For  the  text  of  the  Articles  of  Confederation  and  the  Constitution,  see  Aftendix,  pp. 
49-t-SlJ. 


212 


lllE   LMTEU  states:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


*      i 

'       I 


i^« 


Internatioa 


Iritrrnalinnal 
ImpliL'atiuns 
cf  tlic 

t"uiii>>lerate 
Jutliciary 


Supreme  Court  and  of  inferior  courts,  the  Constitution  vests  the  judiciary 
with  the  express  power  to  pass  U|K)n  and  to  decide  all  cases  aflfectinf;  ainhas'- 
sadors  and  other  pul.lic  ministers,  and  consuls,  all  cases  ,.f  adniiraltv  and 
maritime  .jurisdiction,  ontroversi-s  to  which  the  United  States  shall'  l)e  a 
party.  contr(.ver>ifs  iH-tween  two  (ir  more  States,  and  controversies  between  a 
State  and  foreign  States,  citizens  or  sul.jects.  It  should  further  he  said  in 
this  connection  that  certain  ju.licial  questions  were  ileemed  to  be  of  such 
importance  that  the  Supreme  Court  was  vested  with  original  jurisdiction 
thereof,  whereas  of  other  (juestions  the  Supreme  Court  was  to  exercise  appel- 
late jurisdiction.     Thus  in  Article  III,  Section  2.  of  the  Constitution: 

In  all  cases  .iffecting  Amba'^sadors.  other  public  Ministers  and  Consuls, 
and  those  in  which  a  State  shall  be  Party,  the  supreme  Court  shall  have 
original  Jurisdiction. 

It  will  be  seen  that  the  first  category  consists  of  international  questions, 
cases  affecting  ambassadors,  public  ministers  and  consuls,  and  suits  Ix-tween 
States  oi  the  American  Union,  which,  by  the  10th  Amendment  to  the  Con- 
stitution, are  regarded  as  possessing  the  powers  not  .lelegated  to  the  United 
States  in  the  Constitution.     As  in  the  case  of  the  Confederation,  the  States 
renounced  the  right  to  enter  into  direct  negotiations  or  to  engage  in  war  by 
two  clauses  of  the  10th  section  of  Article  I.  providing  that  "  Xo  State  shall 
enter  into  any  Treaty.  Alliance,  or  Confederation;"  that  "no  State  shall 
without  the  Consent  of  Congress  .  .  .  keep  Trtwps.  or  Ships  of  War  in  time 
of  Peace,  enter  into  any  .\greement  or  Compact  with  another  State,  or  with 
a  toreign  Power,  or  engage  in  War.  unless  actuallv  invaded  or  in  such  immi- 
nent Danger  as  will  not  admit  of  delay."     In  other  words,  in  the  relations  of 
the  States  with  foreign  nations,  they  invested  the  United  States  with  their 
conduct  and  adjustment.     In  questions  l)etween  and  among  themselves  they 
created  an  nher  agency  of  their  own,  by  which  and  thr,       h  which  these  ques- 
tions should  he  settled.     They  showed'  their  belief  in  the  efficacy  of  judicial 
settlement  by  investing  their  Supreme  Court  with  original   jurisdiction   in 
questions  concerning  ambassadors,  ministers,  and  consuls,  in  the  hope  that 
disputes    concerning    these    matters    would    l)e    settled    by    judicial    process, 
just    as    the   disputes    between    themselves    were    to    be    settled    by    judicial 
process. 

But  as  the  nations  of  the  world  had  not  renounced  direct  negotiations  or  a 
resort  to  arms,  as  the  States  themselves  had  done  in  the  exercise  of  their 
wisdom  and  discretion,  the  United  States  as  their  agent  was  invested  bv  the 
Articles  of  Confederation  with  the  right  to  conduct  diplomatic  negotiations 
and  to  resort  to  war  if  need  l)e,  thus  tonfes.-ing  their  faith  in  judicial  settle- 
ment and  manifesting,  it  would  seem,  their  wiHineness  to  have  the  disputes 
of  the  Union,  like  the  disputes  of  the  States  in  matters  of  law  and  equity. 


THE    IIKST    PERMANENT   TKIBL  NAL  OF  THE  STATES 


213 


settled  l)y  decisions  of  courts,  if  the  I'nited  States.  like  the  States  in  their 
wisdom  and  discretion,  should  interpose  the  judicial  remedy  Ivetween  the  break- 
down of  diplomacy  and  the  resort  to  anus.  Hccause  if  tlie  novelty  and  of 
the  interest  of  the  provisions  of  the  (  on  federation  in  the>e  respects,  it  is  of 
importance  to  dwell  upon  them,  since  they  are  as  capable  of  application  to 
the  sovereign,  free  and  independent  Slates  forming  the  society  of  nations  as 
they  were  to  the  sovereign,  free  and  independent  States  forming  the  Con- 
federation. Hecanse  of  their  retention  in  the  Constitution  and  of  their  de- 
velopment into  agencies  which  h.ivc  justified  themselves  for  a  hundred  years 
and  more  in  the  settlen>ent  of  disputes  Iwtween  the  States  of  the  I'nion  it  is 
more  evident  to  us  today  than  it  was  to  them  that  these  agencies  are  likewise 
a])plical)le  to  disputes  Iwlween  and  among  the  members  of  the  society  of 
nations. 

There  is  an  added  interest  in  such  an  examination.  I)ecause  the  imperfect 
procedure  of  the  Confederation  Ijecamc  the  perfected  procedure  of  the  Con- 
stitution. I'y  the  determination  of  what  is  just,  exactly  as  set  forth  in  the 
teachings  of  Aristotle,  the  princijjle  of  order  in  that  political  society  which 
we  call  the  United  States  can  be  and  will  be  the  principle  of  order  in  the 
political  society  which  we  call  the  society  of  nations  unless  the  nations,  like 
Saturn,  are  always  to  devour  their  offspring. 

It  was  natural  that  the  framers  of  the  Constitution  should  confess  their 
faith  in  judicial  settlement,  Ijecause  there  were  courts  in  all  the  Stat  s  and  a 
Suprenie  Court  in  every  State.  They  had  had  experience  with  felonies  and 
piracies  committed  on  the  high  .seas  :  they  had  l)een  parties  to  the  wars  of  dreat 
Britain  —  indeed,  the  Seven  ^'ears  War,  called  by  us  the  French  and  Indian 
War,  l)egan  in  the  western  world  —  and  they  felt  the  necessity  of  rules  for 
the  capture  and  disposition  of  prizes.  X'ice  admiralty  courts  had  been  estab- 
lished in  the  colonies  with  appeals  to  dreat  Britain,  and  on  the  eve  of  the 
Revolution  these  admiralty  courts  had  come  very  prominently  to  their  atten- 
tion, in  that  they  had  recently  Iteen  invested  with  the  trial  of  political  offenses 
without  the  intervention  of  a  jury,  as  a  court  of  admiralty  is  a  court  of  civil. 
n(jt  of  common,  law.  They  had  had  experience  with  disputes  not  only  with 
the  mother  country  concerning  the  correct  interpretation  of  their  charters; 
but  with  other  colonies  on  the  same  and  other  matters.  The  Kitig  in  Council 
had  l)een  the  court  of  appeal  in  such  cases;  the  King  in  C'^uncil  exercised  a 
large  control  over  the  colonies  as  well  as  in  the  settletner  of  their  disputes; 
and  the  King  in  Council  is  today,  through  the  instrumentality  of  the  judicial 
committee  thereof,  the  court  of  appeal  froin  the  colonies  and  of  greater 
Britain.  It  was  therefore  natural  that,  brought  together  by  what  they  re- 
garded the  oppression  of  the  mother  country,  they  should  settle  these  matters 
in  the  way  with  which  they  were  ftuniliar,  preferring  the  old  rut  to  the  new 
road  whenever  possible. 


r.etiRonl 
of  the 
State 
C'luirli 


214 


THE   UN'ITED  STATES:   A   STinY   IN    INTERNATIONAL  ORGANIZATION 


*»«• 


Trill  of 
Piracic* 
■nd 
Fclonict 


Therefore,  under  the  Articles  of  Confctleration  the  Congress,  with  its 
powerless  president,  was  substituted  for  the  Council,  with  its  powerful  king. 
In  the  txercise  of  this  jnris<liction,  the  Congress  endeavored  to  avail  itself 
of  the  institutions  and  agencies  of  the  States,  without  attempting  to  create 
its  own  as  to  which  it  felt  a  lack  of  authority.  Therefore,  in  the  beginning 
the  Congress  contentetl  itself  with  requesting  the  States  to  assume  jurisdiction 
where  their  agencies  could  be  made  use  of :  but,  in  the  end.  Congress  felt  itself 
obliged  to  create  an  agency  of  its  own,  no'  ithstanding  the  existence  of  local 
institutions.  It  refrainetl  from  doing  sj  until  the  Articles  of  Confederation 
had  l)een  adopted  by  the  Congress  and  approved  by  the  majority  of  the  States, 
although  not  by  all  of  them.  In  the  case  of  disputes  between  the  States,  the 
Congress  appears  to  have  followed  the  practice  of  the  King  in  Council  in 
accepting  jurisdiction  More  referring  the  matters  to  judicial  determination 
by  a  commission  or  committee.' 

Let  us  now  take  up  the  provisions  of  the  ninth  of  the  Articles  of  Confedera- 
tion in  each  of  these  matters,  and  in  the  order  in  which  they  are  set  forth 
therein.  "  The  United  States,  in  Congress  assenbled,  shall  have  the  sole  and 
exclusive  right  and  power  of  .  .  .  appointing  courts  for  the  trial  of  piracies 
and  felonies  committed  on  the  high  seas."  I'nder  this  heading,  the  Congress 
contented  itself  with  utilizing  the  machinery  of  the  States.  Thus,  by  an  ordi- 
nance of  .\pril  5,  1781,  it  was  provided  that  persons  charged  with  such  offenses 
should  Ijc  "  enquired  of,  tried  and  adjudged  by  grand  and  petit  juries,  accord- 
ing to  the  course  of  the  common  law,  in  like  manner  as  if  the  piracy  or  felony 
were  committed  upon  the  land,  and  within  some  county,  district  or  precinct  in 
one  of  these  United  States."  ' 

Having  thus  provided  for  the  law.  Congress  determined  the  court  in  which 
the  law  should  be  administered.  Thus,  "  the  justices  of  the  supreme  or  supe- 
rior courts  of  judicature,  and  judge  of  the  Court  of  .\dmiralty  of  the  several 
and  respective  states,  or  any  two  or  more  of  them,  are  hereby  constituted  and 
appointed  judges  for  hearing  and  trying  such  offenders."  In  some  of  the 
States  there  was  more  than  one  .\dmiralty  judge.  Therefore,  the  Congress 
met  this  contingency  by  providing  that  "  if  there  shall  be  more  than  one  judge 
of  the  admiralty  in  any  of  the  United  States,  that  then,  and  in  such  case,  the 
supreme  executive  power  of  such  State  may  and  shall  commissionatc  one  of 
them  exclusively  to  join  in  perfoniiing  the  duties  required  by  this  ordinance." 

'  The  followiiiK  account  is  b.Tscd  upon  an  admir.ible  ami  learned  article  entitled  Fi'dvral 
Courts  I'rinr  to  the  .tdoftioii  of  the  Consliliilion,  by  the  Hunorable  J.  C.  Hancroft  Davis,  Re- 
porter to  the  Supreme  Cnurt  of  the  L'nitcd  States  (\M  L'.  S„  .!/>/•.  xix-txiii),  and  The  Prede- 
cessor of  the  Supreme  Court,  by  I'rofessor  J.  Franklin  Jameson,  in  the  volume  entitled  Rssays 
in  the  Cynslitulional  llistors'  of  the  I  iiiled  StLiles  in  the  l-ormathe  Period,  177^-17^9  (I8)W), 
pp.  1-45.  When-  not  directly  quoted,  the  texts  of  these  remarkable  essays  have  been  para- 
phrased. A  valuable  account  of  this  matter  will  be  found  in  Chapters  iv,  v,  and  vi  of 
!iampt'-.n  L   Carsfti's  ll-.-t-.-t;-  rf  t'-.e  Siif-rtir,-  C-ztrl  :f  ll-r  ''niltrd  Slalei,  Vol.  i. 

■  Journals  of  the  CoiilineiiUil  Coioiress.    .'ol.  \i\.  pi'.  .'5-1-6. 


THE   FIRST    PERMANENT   TRIBL'NAL  OF  THE   STATES 


2IS 


As  this  ordinance  was  amended  on  March  4,  1783,'  in  matters  of  form  rather 
than  of  sjhstance,  it  is  not  neicssary  to  quote  it,  ami.  following  the  example 
of  Judge  Davis  in  this  very  matter.  "  I  have  no?  thought  that  any  giMxl  purpose 
would  l)e  served  by  hunting  up  and  printing  i  list  of  the  persons  tried  under 
these  ordinances." ' 

The  ini|K)rtant  fact  for  the  matter  in  hand  is  that  the  States  represented 
In  Congress  felt  the  need  of  son.e  provision  for  the  trial  of  piracies  and  fel- 
onies committed  on  the  high  seas,  ami  the  mere  statement  of  this  f.ict  is  suffi- 
cient as  showing  that,  in  their  opinion,  a  judicial  Ixxly  was  required  for  this 
purpose.  .\s  they  were  to  Iw  tried  by  a  law  common  to  the  States,  with 
which  the  States  were  familiar  and  which  they  had  administered,  the  agencies 
of  the  States  were  used. 

"  The  United  States  in  Congress  assembled  ^hall  have  the  sole  and  exclu- 
sive right  and  power  of  .  .  .  establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures,  p"-'  vided  that  no  meml)er  of  Congress 
shall  be  appointed  a  judge  of  any  of  the  said  courts."  The  power  vested  in 
Congress  was  exercised  not  merely,  as  in  the  case  of  piracies  and  felonies,  at 
the  end  of  the  Revolution,  but  at  the  very  U-ginning.  The  State  machinery 
which  was  first  employed  was  foimd  inade<iuate,  and  the  Congress  established 
a  court  of  its  own,  finally  known  as  the  Court  of  Appeals  in  Cases  of  Capture. 
This  is  the  first  instance  of  a  federal  tribunal  created  within  the  I'nited  States,  Jht 
and  is  considered  as  the  immediate  predecessor  of  the  Supreme  Court  thereof;  xnbunLi 
although,  as  will  be  .seen  later,  it  shares  this  exalted  honor  with  the  commis- 
sions under  the  ninth  article  appointed  for  the  trial  of  controversies  between 
the  States.  It  is  therefore  neces.sary  to  defme  the  nature  and  to  consider  the 
origin  and  development  of  this  tribunal  in  some  detail. 

The  necessity  of  prize  procedure  was  evident  from  the  beginning  of  the 
Revolution,  indeed  l)efore  the  Declaration  of  Independence,  and  the  experi- 
ence had  in  the  matter  of  prizes  forced  Congress,  somewhat  reluctantly,  to 
exercise  the  power  of  appointing  a  court  for  this  purpose  Ijefore  the  Articles 
of  Confederati4)n  had  been  adopted  by  the  last  of  the  States  on  March  1.  1781, 
thus  inv;;sting  the  Congress  with  the  power  legally  so  to  do.  It  was  inevitable 
that  enterprising  merchantmen  of  the  ditTerent  States  would  waylay  Briti.sh 
commerce  upon  the  high  seas,  and  it  was  clear  to  discerning  minds  that  ves.sels 
belonging  to  ditTerent  States  and  commanded  by  citizens  thereof  would  fall 
oui  among  themselves  as  to  the  shares  of  the  prize  to  which  they  thought 
them.selves  entitled,  involve  the  States  in  controversies  and.  by  lawless  conduct, 
draw  the  United  States  into  controversy,  perhaps  into  contlict,  with  foreign 
States. 

'  J■^urna!s  of  the  Atncrican  Congress  from  !''}  ti-  I^'SS  (1S23).  Vo':.  iv.  p.  170. 
=  131  U.  S.,  .4rf  .  V-  "iv. 


S.'1. 


*^f* 


216 


THE    INITEU  states;    A   STl'DY    IN    INIEH.N ATION AL  ORCANIZATION 


The  Revolutidn  broke  out  in  Massachinetts  It  was  therefore  in  Mamu- 
chu>ett.s  that  the  lirst  prize  court  was  e^talilislied.  In  Jiuie.  1775,  KlbriilRC 
Gerry,  then  lie>,'inninB  »  '""K  a"''  ili>tin>,'uishe(l  political  career,  moved  the 
I'rovin-ial  ConRress  of  that  Colony  to  encourage  the  fittiuK  out  of  armed 
ves>cls  and  to  e-ial)h>h  a  court  for  the  trial  and  condemnatinn  of  prizes.  On 
Xovcinl)cr  10,  1775.  an  act  was  passed  which  has  Ikjcu  jtiU««Ho  lie  "  the  first 
actual  avowal  ot  otTen>ive  hostilities  against  the  lother  country,  which  is  to 
tie  found  in  the  annals  of  the  revolution,"  '  and  which  John  .\dams,  then  at 
the  liar  when  not  ujion  the  hu-tinj;s,  considered  to  lie  one  of  the  "  Uildcst,  most 
danRerous.  and  most  im|M)rtant  measures  and  ep<Hhas  in  the  history  of  the 
new  world,  the  commencement  of  an  independent  national  estalili-hment  of  a 
new  maritime  and  naval  military  power.""  ( iencral  Washinjjton,  then  in 
command  of  the  Continental  army  in  and  alxiut  Mo>ton,  which  he  had  l)esieRed 
and  hemmed  in,  reco^jniztd  the  im|)<>rtancc  of  this  action.  He  al^"  felt  the 
necessity  of  uniform  rejjulations  and  practice  to  prevent  the  States  ;  rom  (luar- 
rrlinu'  amon^  themselves,  to  secure  uniformity  of  decision  in  matters  of  prize, 
which  was  in  the  interest  alike  of  the  States  and  of  the  United  States  in  their 
relations  with  foreijjn  countries.  Therefore,  on  N'ovcmlier  11,  177',  the  day 
after  the  passage  of  the  Massachusetts  act,  he  thus  vm  te  to  John  Hancock, 
President  of  the  Continental  Congress: 

Knclose<l  yim  have  ;i  c()p\  i.f  an  act  passed  thi-  sps^ion,  hy  the  honorable 
CouiHJl  and  House  of  Kepn'^int.itivc-  of  this  pro\itice.  It  respects  suihi 
cajitures  ;is  may  be  made  by  vessel-  i  'til  out  by  tlii'  province,  or  b,-  indi- 
viduals thereof.  .\s  ihf  armed  vc«eU  hUt'4  out  at  the  (  oiitinental  e\peiisc. 
do  not  come  under  this  law.  I  u.  '^.1  have  it  submitted  lo  the  con-iidcrat  on 
of  Congress,  to  point  out  a  more  inmarv  wav  of  iirrKceding.  to  deternrne 
tlie  property  and  iikmIi-  i,f  cor  1,'nr  iioii  o-  -uch  prizes  as  have  been  or  he 'e- 
after  ni.iy  Ik'  made,  than  i-  -i"  ■  ituii  >n  tb,^>  .u-t 

Should  tuit  a  ruurt  Ih'  c-t  I'bshed  'iv  authoritv  of  Congress,  to  take  <og- 
nizancf  of  prizes  made  l.v  th  '  mtiiu  n«al  vessel-  Whatever  the  modi-  is, 
which  tbcy  are  pliaxtl  to  a<lop!  then  ;-  an  absoiute  necessity  of  its  licing 
speedily  delen'.iind  nn. 

Fearing  that  Congn  .-  had      u  raken  action,  he  again  wrote  to  its  president 
on  Decemk'r  4th  ui  the  same  vea- 

It  is  some  tune  siim  !  reeommcncs!  d  to  the  Congress,  that  they  would 
institute  a  cimrt  for  ilie  f^al  i,f  prizes  made  hv  tile  '  ontinental  arn'ied  ves- 
sels, which  I  hope  'hey  ^!a\  e  ere  now  taken  into  their  consideration  ;  other- 
wi.se  I  should  ,i<,'am  ta*;e  the  liUrty  ul  urging  it  in  the  most  pressing 
manner.*  " 

And.  as  showing  the  importance  wliicb  the  General  rightlv  attached  to  this 


•  J.iim-s  T.  Austin.  Th,-  Lif,-  ..j      Ihndqc  i.crrx    IKJS    Vol    i    i>   'H 
-  Il'ul.,  p  •>fi. 

'I-'wiJ,  tbki..  p.  .'57;  SiarK,.  p,   184.'"  " "" 


;  Sparks,  Voi.  iii.  i>p    154-5. 


THE  r:HST  permanent  tkidi  nal  or  the  states 


217 


matter,  a  further  quotation  may  hv  inadf  from  a  letter  addressed  to  his  fcllow- 
\  irRinian.  Richard  llonry  I.ce,  who.  a  few  ninths  later,  on  June  7.  1776.  was 
to  move  the  momentous  re>i>Iutious  in  Continss  "  tliat  these  I'nited  Colonies 
are  and  of  riyht  ounht  to  he  free  and  independent  States."  '  Thus,  on  De- 
cemlier  26th.  he  wrote  to  Mr.  I.ee: 

...  I  niti'it  Ih'i;  of  yfin,  my  cofid  Sir.  ti>  use  your  influoncr  in  h.nviiig  a 
cniirt  iif  ailinir,dl\ .  or  smnc  |Mi\\rr  .ipiHiintrd  lo  lic.ir  .itid  lUiirniiiir  .ill  in.TlK-rs 
rel.itivi'  to  i-nptiires ;  vnii  r.nnimt  coiuiivc  liou  I  ;iiii  planned  on  this  head, 
and  how  itii|i<i>NiliU'  u  is  f(ir  nir  to  luar  and  dfti-rininc  upon  n. alters  of 
this  sort.  wluMi  ilir  f.uts.  |K'rliap^.  ,irc  liiilv  lo  Iw  a-iiTlaincd  .il  purls,  forty, 
fiflv.  or  nior<'  nnlcs  ilisiant.  willioiil  liriiiKiiiR  the  p.irtic"  here  at  K^eat 
troul)Ie  and  e.xjKiise.  .At  any  rate,  nij  time  will  not  allow  me  to  he  a  com- 
petent judjjc  of  tins  l)usine>s.' 

The  Congress,  however,  had  not  been  remiss,  and  immediately  upon  the 
receipt  of  (Jeneral  Washington's  first  letter  it  took  action.  On  Novemtier  17th 
it  was  "  Krxolvcd.  That  a  committee  la*  apjxiinted  to  take  into  consideration 
M'  nnich  of  >ai(l  letter  as  relates  to  the  disposal  of  such  ve-sels  and  cargoes 
lielonRin^;  to  the  enemy,  as  shall  fall  into  the  hands  of,  or  he  taken  t)\,  the 
inhabitants  of  the  Inited  Colonies."*  On  Xovemhcr  23d,  the  committee 
to  which  the  letter  was  referred  hrouRht  in  its  report.  It  was  ordered  to 
lie  upon  the  table  "  for  the  peru.sal  of  the  memlH.'rs:"'  it  was  "debated  by 
paragraphs"  on  the  24th  and  25th  of  the  same  month,  and  adopted  on  Xo- 
vember  1>.  177.^.*  The  resolut'oiis  authorized  the  ca|)ture  of  prizes  ui)On 
the  hifjh  seas  and  legalizeil  those  which  had  alrcai!  been  made.  They  deter- 
nuned  the  shares  of  the  captors  in  the  prize  and  the  di-tribution  of  the  money. 
They  provided,  as  later  in  the  case  of  |)iracies  and  felonies  committed  on  the 
high  seas,  that  the  trial  should  take  place  in  the  colonial  courts  (  because  at  this 
time  the  Declaration  of  Independence  had  not  iK-en  proclaimed),  and  that  an 
appeal  sliould  lie  to  the  Congress.  The  section  dealing  with  prtKeuure  on 
appeal  thus  reads : 

6.  That  in  all  ca.ses  an  appeal  shall  be  allowed  to  the  Congress,  or  such 
person  or  persons  as  they  shall  appoint  for  the  trial  of  appeals,  provided 
the  appeal  be  demanded  within  five  days  after  definitive  sentence,  and  such 
appeal  be  lodjjed  with  the  secretary  of  Congress  within  forty  days  after- 
wards, and  provided  the  party  appealing  shall  give  security  to  prosecule  the 
said  .ippeal  to  effect,  and  in  case  of  the  death  of  the  secretary  during  the 
recess  of  Congress,  then  the  said  appeal  to  be  lodged  in  Congress  within  20 
days  after  the  meeting  thereof.'' 

The  passage  of  this  resolution  was  pleasing  to  "  the  General,"  and,  with  a 

•  Journals  of  the  Conliiwiilal  Coiitiras.  Vol.  v,  p.  42.s. 

'  Ford.  H'riliniis  of  Gfar(ie  W'ashiniilon.  Vol.  iii.  p.  274;  Sparks,  Vol.  iii,  p.  217. 

S  liiurnnlx  of  the  Contii\fntQl  Cot^qr^tx    \rt\    iii    pp    3s7-8 

♦//'iJ..  pp.  .<'71-5. 
» Ibid.,  p.  374. 


218 


THE   UNITED  STATES:   A   STLDY   IN    INTERNATIONAL  ORGANIZATION 


^* 


First  Case 
of  Appeal 


Conffressional 
Commit;t-c 
on  .\T<pcaI:} 


clearness  of  vision  and  a  tenacity  of  purpose,  recognized  by  his  countrymen 
and  with  which  a  grateful  posterity  credits  him,  he  pointed  out  the  one  thing 
needed  to  perfect  the  action  of  Congress  in  a  passage  from  a  letter  to  its  presi- 
dent, dated  December  14,  1775: 

The  resoh'es  relative  to  captures  made  by  Continental  armed  ^-essels 
only  want  a  court  established  for  trial,  to  make  them  complete.  This,  I 
hojie,  will  be  soon  done,  as  I  have  taken  the  liberty  to  urge  it  often  to  the 
Congress.' 

In  the  entl.  the  Congress  was  forceil  to  take  the  action  which  the  far-sighted 
Washington  had  recommended  in  the  beginning;  but  it  was  only  taken  after 
great  hesitation,  with  much  reluctance,  and  when  a  very  bitter  experience  had 
convinced  its  menil)ers  of  the  absolute  necessity  of  a  court. 

Befure  stating  this  incident,  it  should  be  mentioned  that  an  Admiralty 
Court,  generally  reiiuiring  trial  by  jury,  was  organized  in  each  of  the  colonies 
or  States  in  accordance  with  the  recommendation  of  the  Congress  that  this 
be  done,  as  it  will  be  observed  that  Congress  contented  itself  for  the  present 
with  an  appeal  from  the  local  jurisdictions,  which  were  regarded  as  courts  of 
fir>t  instance  in  prize  matters.  The  intent  of  Congress  seems  to  have  been 
misunderstood,  as  on  January  31st  and  February  27,  1776,  two  cases  which 
had  not  l)een  passed  upon  by  the  colonial  courts  were  referred  direct  to  the 
Congress  by  the  petitioners,  and  in  each  case,  in  accordance  with  its  under- 
standing nf  its  resolutions,  the  Congress  referred  the  applicants  to  the  colo- 
nial courts.  However,  a  few  weeks  later  (April  4.  1776).  the  Congress  took 
original  jurisdiction  in  the  matter  of  a  prize  vessel  which  had  been  run  ashore,* 
directed  that  it  be  sold,  and  decreed  the  distribution  of  the  proceeds  arising 
from  the  sale.  This  appears,  however,  to  have  been  the  only  instance  in  which 
the  Congress  took  original  jurisdiction.  Therefore,  it  only  acted  in  cases  of 
appeal,  at  first  directly,  shortly  thereafter  through  committees,  and  finally  by 
means  of  an  api)ellate  court  established  in  accordance  with  General  Washing- 
ton's reeummenilation. 

The  first  case  of  appeal  was  that  of  the  schooner  Thistle*  which  was  laid 
before  Congress  on  Auf,'nst  5,  1776,  a  month  after  the  Declaration  of  Inde- 
pendence. Congress  attempted  to  hear  the  api)eal  as  a  body  but  eventually 
referred  it  to  a  special  committee,  and  the  earlier  cases  were  referred  to  special 
committees  until,  in  the  l>eginning  of  1777,  Congress  felt  the  necessity  of  and 
therefore  created  a  standing  conmiittee  on  appeals,  to  consider  such  cases  as 
should  l)e  laid  l)efore  it  in  accordance  with  its  resolution  of  Xoveml)er  25, 
1775.     This  important  action  was  taken  on  January  30,  1777,  when  it  was 

'  Ford,  II  filings  of  Washington,  Vol.  iii,  p.  274;  Sparks,  Vol.  Hi,  pp.  196-7. 
*  Journals  of  the  Continental  Congress,  Vol.  iv,  p.  256. 
*lh„1 ,  V'nl,  V.  p,  fi31. 


THE  FIRST  PERMANENT  TRIBUNAL  OF  THE  STATES 


219 


"Resolved,  That  a  standing  committee  to  consist  of  five  members,  be  ap- 
pointed to  hear  and  determine  upon  appeals  brought  against  sentences  passed 
on  libels  in  the  courts  of  Admiralty  in  the  respective  states,  agreeable  to  the 
resolutions  of  Congress ;  and  that  the  several  appeals,  when  lodged  with  the 
secretary,  be  by  him  delivered  to  them  for  their  final  determination."  '  The 
members  of  the  committee  were  frequently  changed,  but  the  method  was  con- 
tinued until  a  court  was  established.  The  defects  of  a  changing  personnel, 
even  although  forming  a  permanent  committee,  were  pointed  out  by  the  mer- 
chants and  citizens  of  Philadelphia,  with  the  approval  of  the  Pennsylvanian 
authorities,  in  the  petition  to  Congress  of  May,  1779,  which  is  susceptible  of 
a  larger  application : 

The  success  of  the  American  privateers  exceeded  for  a  time  the  most 
sanguine  expectation,  and  in  all  probability  had  still  continued,  if  certain 
causes  had  not  arisen  to  interrupt  it.  What  these  Causes  are,  we  do  not 
mean  to  enumerate.  We  shall  only  suggest  one,  and  leave  it  to  your  honors 
to  say  what  influence  it  may  have  had,  and  to  provide  a  remedy  against  it 
in  future. 

Certainty  in  the  Laws  is  the  great  Source  of  the  people's  Security,  and 
an  adherence  to  prior  adjudication  is  the  principal  means  of  attaining  that 
certainty.  But  the  Court  of  -Appeals  in  its  present  State  is  continually  fluc- 
tuating, the  same  Judges  seldom  acting  for  more  than  a  few  months.  In 
a  Court  where  there  is  this  Constant  change  and  succession  of  Judges,  it  is 
impossible  that  fi.xed  principles  can  be  established,  or  the  doctrine  of  prece- 
dents ever  take  place. 

Every  obstacle  that  creates  unnecessary  delay  in  the  administration  of 
Ju.stice.  should  be  carefully  removed,  but  when  the  seeds  of  this  delay  are 
sown  in  the  very  Constitution  of  the  Court,  the  People,  rather  than  have 
recourse  to  a  Tribunal  of  that  kind,  will  he  induced  to  give  up  their  right. 
This  we  apprehend  to  be  the  nature  of  the  Court  of  .Appeals.  .  .  . 

Impressed  with  these  Considerations  and  others  that  might  be  men- 
tioned, [we  venture]  to  point  out  the  propriety  of  nominating  Judges  of 
Appeal,  who,  not  being  members  of  Congress,  would  have  more  leisure  for 
the  discharge  of  their  employment.  We  shall  only  observe  that  we  trust  to 
the  W'isdom  of  Congress  to  establish  the  Court  of  .Appeal  on  a  lasting  and 
solid  Foundation,  and  to  remove  by  proper  regulations  the  imperfections 
that  are  at  present  so  generally  the  ground  of  Complaint.' 

The  merchants  and  citizens  of  Philadelphia  were  peculiarly  qualified  for 
discovering,  and  were  interested  in  pointing  out.  the  defects  of  the  judgments 
obtained  by  a  standing  committee  on  appeal  in  prizes  with  a  shifting  niember- 
.ship.  for  events  had  taken  place  under  their  very  eyes  which  filled  them  with 
apprehension,  not  only  as  to  their  own  aflfairs  but  as  to  the  state  of  the  rnion, 
if  Union  it  could  l)e  called.  The  case  of  the  Actkc.  for  it  is  to  this  that 
reference  is  made,  called  attention  to  another  great  defect  of  the  .existing 
system,  because,  although  a  State  decree  was  reversed  by  the  committee  on 

•  Journals  cif  the  Cnnlinenlal  Cnnqrcss.  Vol.  vii.  p.  7S. 

'Jameson,  Essays  in  tin:  Constitutionai  History  of  the  United  States,  pp.  24  26. 


220 


THE  UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


Th« 
CaMof 
the  Aclivt 


■f^* 


appeal,  the  State  court  did  not  feel  itself  obliged  to  give  effect  to  the  reversal 
of  its  judgment  and  to  recognize  by  proper  action  the  rights  of  property 
acquired  under  federal  appeal. 

The  facts  of  this  case  are  very  interesting,  and  should  be  stated  in  this 
connection,  as  it  was  one  of  the  cases  which  led  to  the  organization  of  a 
court  of  ajipeal.  and,  indirectly,  to  the  establishment  of  the  Supreme  Court 
itself.  One  (iideon  Olmstead  and  three  other  citizens  of  Connecticut  were 
cajitured  by  the  British  and  carried  to  Jamaica,  where  they  were  put  on  board 
the  sloop  Acthc,  laden  with  a  cargo  of  supplies  for  New  York,  then  in  pos- 
ses.sii.n  of  the  British.  They  were  obliged  to  assist  in  its  navigation,  which 
they  were  unwilling  to  do.  They  therefore  rose  against  the  master  and  crew, 
took  possession  of  the  sloop,  and  made  for  the  port  of  Egg  Harbor,  in  New 
lersey;  but,  before  reaching  this  port,  the  Active,  under  their  control,  was 
captured  by  one  Houston  in  command  of  the  Pennsylvanian  armed  brig  Con- 
::••  ::on.  The  Actne  v as  taken  into  the  port  of  Philadelphia  and  libeled  as 
prize  of  the  Comcntion.  The  case  was  further  complicated  by  the  fact  that 
the  officers  of  a  privateer,  cruising  in  company  with  the  Convention,  claimed 
to  have  taken  part  in  the  capture,  and  therefore  made  claim  to  a  part  of  the 
proceeds.  Olm.stead  and  his  companions,  claiming  the  sloop  Active,  in  which 
they  were  in  control  when  taken,  put  in  a  claim  to  the  whole  of  the  proceeds. 
In  the  admiralty  court  of  Pennsylvania  a  trial  was  had  by  jury,  the  verdict 
of  which  was  as  follows : 

One-fnurth  of  the  net  proceeds  of  the  sloop  Active  and  her  cargo  to  the 
first  cl.iiniants.  three-fourths  of  the  net  proceeds  of  the  said  sloop  and  her 
cargo  to  the  libellant  and  the  second  claimant,  as  per  agreement  between 
them.' 

Judgment  was  entered  upon  the  vert'-ct.  from  wh,.h  an  appeal  was  taken  by 
Olmstead  and  others  to  the  Congressional  committee  of  appeal.  On  Decem- 
ber 1.^.  1778.  the  commissioners  reversed  the  decision  of  tl  state  court  and 
rendered  judgment  in  favor  of  Olmstead  and  others,  directii  he  court  below 
to  sell  the  sloop  and  cargo  and  to  pay  the  remainder  to  the  appellants  after 
deducting  costs,  charges  and  expenses.  The  judge  of  the  Pennsylvania  Court 
of  Admiralty  recognized  the  validity  of  the  decision  reversing  the  decree  of  his 
court,  but.  insisting  that  he  could  not  set  aside  the  verdict  of  the  jury,  issued 
an  order  that  the  sloop  and  cargo  be  .sold  and  the  proceeds  brought  into  court. 
On  Deceml)er  28.  1778.  the  appellants  moved  the  committee  that  process  might 
issue  to  the  .\dmiralty  Court  of  Pennsylvania  commanding  the  marshal  to 
execute  the  decree  of  the  committee.  The  committee  accordingly  directed  the 
marshal  to  hold  the  money  subject  to  their  order,  but  he  disregarded  this  order 
and  paid  the  money  to  the  Admiralty  Judge;  whereupon  the  committee  de- 

1  Journals  of  the  Continental  Cnnqrcss.  Vol.  xiii.  p.  28A 


THE   FIRST   PERMANENT  TRIBUNAL  OF  THE  STATES 


221 


clared  that  "  this  Court,  being  unwilling  to  enter  into  any  proceedings  for 
Contempt,  lest  Consequences  might  ensue  at  this  Juncture  dangerous  to  the 
public  Peace  of  the  United  States,  will  not  proceed  farther  in  this  affair,  nor 
hear  any  Appeal,  until  the  Authority  of  this  Court  shall  I)e  so  settled  as  to 
give  full  Efficacy  to  their  Decrees  and  Process."  '  At  the  same  time  the  com- 
mittee laid  the  proceedings  before  Congress,  which  approved  their  action  in 
an  elaborate  series  of  resolutions,  which  are  so  important,  because  of  their 
larger  bearing  upon  the  relation  of  the  States,  or  indeed  of  any  nation  to 
foreign  countries,  that  they  are  quoted  in  full : 

Resolved.  That  Congress,  or  such  person  or  persons  as  they  appoint  to  r„nc„,.i„n,| 
hear  and  determine  appeals  from  the  courts  of  admiralty,  have  necessarily  RMoiu'tiolT."— 
the  power  to  examine  as  well  into  decisions  on  facts  as  decisions  on  the  law.  ^t^uilT""" 
and  to  decree  finally  thereon,  and  that  no  finding  of  a  jury  in  any  court  ol 
admiralty,  or  court  for  determining  the  legality  of  captures  on  the  high  seas 
can  or  ought  to  destroy  the  right  of  appeal  and  the  re-examination  of  the 
fac's  reserved  to  Congress; 

That  no  act  of  any  one  State  can  or  ought  to  destroy  the  right  of  appeals 
to  Congress  in  the  sense  above  declared : 

That  Congress  is  by  these  I'nited  States  invested  with  the  supreme  sov- 
ereign ix)wir  of  war  and  peace: 

That  the  power  of  executing  the  law  of  nations  is  essential  to  the  sov- 
ereign supreme  power  of  war  and  peace: 

That  the  legality  of  all  captures  on  the  high  seas  must  be  determined  by 
the  law  of  nations : 

That  the  authority  ultimately  and  finally  to  decide  on  all  matters  and 
questions  touching  the  law  of  nations,  does  reside  and  is  vested  in  the  sov- 
ereign supreme  power  of  war  and  peace: 

That  a  controiil  by  ajjpeal  is  necessary,  in  order  to  compel  a  just  and 
uniform  execution  of  the  naw  of  nations: 

That  the  said  controul  must  extend  as  well  over  the  decisions  of  juries 
as  judges  in  courts  for  determining  the  legality  of  captures  on  the  sea; 
otherwise  the  juries  would  be  possessed  of  the  idtimate  sujireme  power  of 
executing  the  law  of  n.ations  in  all  cases  of  captures,  and  might  at  any  time 
exerc:se  the  same  in  such  manner  as  to  prevent  a  possibility  of  being  con- 
trouled;  a  construction  which  involves  many  inconveniences  and  absurd- 
ities, destroys  an  essential  part  of  the  power  of  war  and  peace  entrusted  to 
Congress,  and  would  disable  the  Congress  of  the  United  States  from  giving 
satisfaction  to  foreign  nations  complaining  of  a  violation  of  neutralities,  of 
treaties  or  other  breaches  of  the  law  of  nations,  and  would  enable  a  jury  in 
any  one  State  to  involve  the  United  States  in  hostilities;  a  construction 
which  for  these  and  many  other  reasons  is  inadmissible: 

That  this  power  of  controuling  by  appeal  the  several  admiralty  jurisdic- 
tions of  the  states,  has  miiierto  been  exercised  by  Congress  by  the  medium 
of  a  committee  of  their  own  members: 

Resolved,  That  the  committee  before  whom  was  determined  the  appeal 
from  the  court  of  admiralty  for  the  State  of  Pennsylyania.  in  the  case  of  the 
sloop  Active,  was  duly  constituted  and  authorized  to  determine  the  same.' 
'  Jameson.  F.ssays.  p.  20. 
^Journals  of  the  Continental  Congress.  Vol.  xiii   pp.  283-4.    Session  of  March  6.  1779. 


I 


iy 


IP 


1^' 


222  THE  UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 

The  legislature  of  Pennsylvania,  on  March  8.  1780,  repealed  the  statute 
authorizing  juries  to  decide  admiralty  causes,  but  the  case  of  the  Active  was 
not  settled  during  the  period  of  the  Confederation,  nor  indeed  for  many 
years  after  the  demise.  The  moneys  had  been  deposited  with  one  David  Rit- 
tenhouse,  the  distinguished  astronomer,  at  that  time  treasurer  of  the  State, 
after  whose  death  Olmstead  and  others  sued  his  executrices  for  them  in  1802 
in  the  United  States  district  court  for  Pennsylvania.  Judge  Peters  decreed  for 
the  plaintiffs;  but  the  legislature  of  Pennsylvania,  apparently  desirous  of 
keeping  the  money  within  their  jurisdiction,  passed  an  act  directing  its  attorney 
general  to  sue  the  executrices  for  the  money  and  directing  the  governor  to 
protect  them  from  federal  process.  In  1809  the  case  came  before  the  Supreme 
Court  of  the  United  States,'  which  had  superseded  the  committee  of  appeals  of 
the  Confederation,  and  before  Chief  Justice  Marshall,  who  sat  in  the  seat  of  the 
commissioners,  where  the  decision  of  the  committee  was  finally  affirmed,  and 
execution  of  the  judgment  of  the  district  court  decreed.  Even  then  the  Penn- 
sylvanian  authorities  were  minded  to  re';-?.  Pennsylvanian  troops  surrounded 
the  house  of  the  executrices  to  prevent  the  service  of  the  writ,  but  in  the  end 
the  federal  marshal,  "  with  some  firmness,  much  composure,  and  great  aO- 
dress,"  succeeded,  as  Professor  Jameson  says,  in  ent  ring  the  house,  afterward 
humorously  called  Fort  Rittenhouse,  and  serving  the  process.' 

It  is  easy  to  decry  the  weakness  of  the  Confederation  because  of  its  failure 
to  execute  its  judgment  in  the  case  of  the  Active,  but  it  should  be  Iwrne  in 
mind  that  the  Congress  was  a  Congress  of  sovereign,  free  and  independent 
States,  which  are  loath  to  allow  'he  use  of  force  against  themselves,  even  in  the 
administration  of  justice—  .  i  appears  also  to  be  a  characteristic  of  the 
American  States  composing  .  .American  Union ;  for,  in  the  procedure  and 
practice  of  the  Supreme  Court,  States  of  the  American  Union  have  not  been 
forced  before  the  court  as  defendants  to  take  part  in  the  trial  of  a  case,  nor 
has  the  execution  of  a  judgment  of  that  august  tribunal  against  them  been 
compelled  by  force. 

The  moral  of  the  Active  was  not  lost  upon  the  Congress,  nor  did  the  peti- 
tion of  the  Philadelphian  merchants  and  citizens  fall  upon  deaf  ears.     On 

»  See  The  Vnitrd  Ulales  v.  JuJyc  Peters.  5  Cranch,  115.  ,         ,     _  .         ,  „   ..„  , , 

s  When  the  District  Court  procicJtd  to  execute  this  mandate,  the  Governor  issued  orders  to 
General  Hrixlit,  "  directing  him  to  call  out  a  portion  of  the  militia  m  order  to  protect  tne  per- 
sons and  property  of  the  representatives  of  Rittenhouse  against  any  process  issued  by  the  Uis- 
tHct  Court  of  the  United  States  in  pursuance  of  this  maiJ.imus.  At  hrst  the  marshal  w  is 
prevented  from  serving  the  process  by' soldiers  under  the  o.mmand  of  U"ght.  but  subsequently 
eluding  their  vigilance,  he  succeeded  in  taking  into  custody  one  of  the  delcndanls.  A  «nt  ;t 
hahcascorl'us.  sued  out  on  behalf  of  the  prisoner,  was.  however  discharged  by  Chef  Justice 
Tilgl.man,  and  subscinemly  General  Bright  with  others  were  indicted  in  the  lircuit  Court  ol 
the  I'nited  States  for  ob-tructing  the  process  of  the  District  Court.  Mr.  Justice  Washington 
presided  at  the  trial,  which  resulted  in  a  verdict  of  Kr.ilty.  The  prisoners  were  sentenced  t" 
be  imprisoned,  and  to  pay  a  fine;  but  were  imimdialtly  par..oi.>d  by  the  1  resident  ot  tie 
United    States.     Olmslrils  C\'Si\    llrigbthV    Kep..    1.  .,,-.•..• 

'-".:.j-,.:^  3i.r,ear=  to  !••  -r  la-en  the  first  case  in  which  the  supniuacy  ot  the  Constitution  v/.is 
enforced  bv  judicial  tribunals  against  the  assertion  of  State  amhority"  ( .Mr.  Justice  Stanley 
Matthew's  Address  before  the  Yale  Law  School.  June  26,  1888.  pp.  19-20.) 


THE  FIRST   PERMANENT  TRIBUNAL  OF  THE  STATES 


223 


May  22,  1779,  the  very  day  on  which  the  petition  had  been  read,  a  resolution 
was  introduced,  recommending  "  that  each  state  pass  an  act  empowering  Con- 
gress, in  advance  of  the  ratification  of  the  Articles  of  Confederation,  to  erect 
a  permanent  court  of  appeals;  but  the  resolution  does  not  appear  to  have 
passed,"  for  the  reason,  suggested  by  Professor  Jameson,  from  whom  the 
above  passage  is  quoted,  that  "  probably  Congress  felt  that  they  would  be 
taking  a  stronger  position  if  they  assumed  the  existence  of  such  power,  as 
derived  from  their  '  supreme  sovereign  power  of  war  and  peace,'  in  much  the 
same  way  as  the  power  to  hear  such  appeals  by  committee  of  Congress  had 
l>e"n,  probably  also  it  despaired  of  securing  such  action  on  the  part  of  all 
thirteen  of  the  states."  ' 

But  indeed,  even  earlier,  the  advisability  of  a  court  had  been  agitated,  for 
on  August  5,  1777,  it  was  "  Resolved,  That  Thursday  next  be  assigned  to  take 
into  consideration  the  propriety  of  establishing  the  Court  of  Appeals."  Thurs- 
day came,  but  the  court  did  not.  The  matter  was  postponed.  In  December 
of  1779,  following  the  Philadelphian  petition,  an  ordinance  was  drafted  for  a 
permanent  court.  As  amended,  it  was  passed  on  January  15.  1780,  in  the 
following  form,  a  year  in  advance  of  the  definitive  adoption  of  the  Articles 
of  Confederation: 


Resolved,  That  a  court  be  established  for  the  trial  of  all  appeals  from 
the  Courts  of  Admiralty  in  these  United  States,  in  cases  of  capture,  to  con- 
sist of  three  judges  aiipointed  and  commissioned  by  Congress,  either  two  ot 
whom,  in  the  absence  of  the  other,  to  hold  the  said  court  for  the  despatch 
of  business:  that  the  said  coii.t  appoint  their  own  register;  that  the  trials 
therein  be  according  to  the  usage  of  nations,  and  not  by  jury.' 

It  was  also  resolved : 

That  the  said  judges  hold  their  first  session  as  soon  as  may  be  at  Phila- 
delphia, and  afterwards  at  such  tinics  and  places  as  they  shall  judge  most 
conducive  to  the  public  good,  so  tiiat  thev  do  not  at  any  time  sit  further 
eastward  than  Hartford  in  Connecticut,  or  southward  than  Williamsburg  in 
\  irginia.' 

On  January  22d  the  Congress  chose  as  the  three  judges  of  the  court,  George 
W ythe  of  \irginia,  William  Paca  of  Maryland,  and  Titus  Hosmer  of  Con- 
necticut—an admirable  personnel.  Mr.  \\'ythe  declining,  Cyrus  Griftin  of 
\'irginia  was  elected  in  his  place  on  .April  28th.  Mr.  Paca  accepted  on  the 
9th  of  February.  Mr.  Hosmer  and  Mr.  Griftin  on  the  4th  of  May.* 

The  act  of  January  15,  1780,  crtiting  the  court,  did  not  provide  for  the 
transfer  to  it  of  the  cases  pending  l)efore  the  committee.  On  May  9th  the 
case  of  Bragg  v.  The  Sloop  Dove  »  was  brought  on  appeal  before  Congress. 


'  Jameson,  Essavs,  p.  27. 
» 131  U.  S..  App'..  p.  XXV. 


*  Ihid..  pp.  xxv-xxvi. 
'  Ibid.,  p.  xliv. 


•"W" 


224  THE   UNITED  STATES:   A   STUDY  IN    INTERNATIONAL  ORGANIZATION 

It  was  referred  to  the  new  court  and  on  May  24th  Congress  resolved  "  that 
the  stile  of  the  Court  of  Appeals  appointed  by  Congress  be  '  the  Court  of 
Appeals  in  cases  of  capture;'  that  appeals  from  the  Courts  of  Admiralty  in 
the  respective  States  be,  as  heretofore,  demanded  within  five  days  after  defini- 
tive sentence,  and  in  future  such  appeals  be  lodged  with  the  register  of  the 
Court  of  Appeals  in  cases  of  capture  within  forty  days  thereafter:"  and 
"  that  all  matters  respecting  Appeals  in  cases  of  capture  now  depending  before 
Congress,  or  the  Commissioners  of  Appeals,  be  referred  to  the  newly  erected 
Court  of  Appeals,  to  be  there  adjudged  and  determined  according  to  law ;  and 
that  all  papers  touching  appeals  in  cases  of  capture  lodged  in  the  office  of  the 
Secretary  of  Congress,  be  delivered  to  and  lodged  with  the  register  of  the 
Court  of  Appeals."  »  Thus  the  first  permanent  tribunal  of  thes  United 
States  was  established. 

Mr  Davis,  whose  article  entitled  The  Federal  Courts  Prior  to  the  Adop- 
tion of  the  Constitution  has  largely  served  as  the  basis  for  the  alwve  re- 
marks, gives  the  following  analysis  of  the  work  of  the  committees  and  of  the 
court  of  appeals: 

•^ivtv-four  cases  in  all  were  submitted  to  the  committees  of  Congress,  of 
whiS^  fLtJ-nine  were  decided  by  them,  four  -^m .»?  ^-VurvTcases  in 
eleven  went  over  to  the  Court  of  Api>eals  for  deoMonFifty-six  cases  in 
all    includine  the  eleven  which  went  over,  were  submitted  to  the  Court  ot 
ApiS   and  a^l  were  disposed  of.     Appeals  were  heard  from  every  man- 
time  St-lte  except  New  York.    None  came  from  that  State:  doubtless  be- 
caTsel^s  maritime  counties  were  occupied  by  the  enemy  from  the  autumn 
of  1776  to  the  end  of  the  war.* 
After  examining  the  records  of  the  committee  and  of  the  court  of  appeals, 
and  enumerating  the  cases  in  which  the  court  of  appeals  filed  written  opinions. 
Mr.  Davis  thus  closes  his  account  of  the  cases  »  determined  on  appeal  by  the 
Congress,  its  permanent  committee,  and  the  federal  Court  of  Appeals: 

Thev  were  properly  placed  in  the  volumes  which  contain  the  commence- 
ment of' the  ^er'^^esT.f  ^Reports  of  the  Supreme  Court  oj ;»;?  ^n^^  ,f '^ 
for  the  court  from  which  they  proceeded  was  in  its  day  the  highest  coun 
in  the  country,  and  the  only  appellate  tribunal  with  jurisdiction  over  the 
whole  United  States.* 

1 131  V.  S.,  Atf.,  p.  xxvi. 

3  <o'far''is'am.tars  by  these  papers,  no  written  reports  in  the  nature  of  opinions  were  made 

*  Ibid.,  p.  XXXV. 


I-I 


THE  FIBST  PERMANENT  TRIBUNAL  OF  THE  STATES 


225 


As  to  the  influence  of  the  Court  of  Appeals,  which  went  out  of  existence  two 
clays  after  the  meeting  of  the  memorable  convention,  which,  as  Professor 
Jameson  says,  "  provided  the  United  States  with  a  more  comprehensive  and 
more  eflfective  judiciary,"  and  its  importance  in  the  development  of  a  perma- 
nent judiciary  Professor  Jameson  writes: 

However  this  may  be,  it  can  not  be  doubted  that  the  Court  of  Appeals, 
though,  as  remarked  by  counsel  in  Jennings  v.  Carson,  "  unpopular  in  those 
states  which  were  attached  to  trial  by  jury,"  had  an  educative  influence  in 
bringmg  the  people  of  the  United  States  to  consent  to  the  estal)lishment  of 
such  a  successor.  It  could  hardly  be  that  one  hundred  and  eighteen  cases, 
though  all  in  one  restricted  branch  of  judicature,  should  be  brought  by 
appeal  from  state  courts  to  a  federal  tribunal,  without  familiarizing  the 
public  mmd  with  the  complete  idea  of  a  superior  judicature,  in  federal 
matters,  exercised  by  federal  courts.  The  Court  of  Appeals  in  Cases  of 
Capture  may  therefore  be  jjstly  regarded,  not  simply  as  the  predecessor, 
but  as  one  of  the  origins,  of  the  Supreme  Court  of  the  United  States.' 

»  J.  Franklin  Jameson,  Ejsays,  pp.  43-4. 


IMMIMI 


*^' 


XI 
TEMPORARY  JUDICIAL  COMMISSIONS 

Difficulties  and  disputes  that  may  arise  between  the  subjects  of  the  King  and  the  in- 
habitants of  the  Swiss  Cantons,  shall  be  settled  by  the  judgment  of  four  men  of  standmg, 
two  of  whom  shall  be  named  by  each  party;  which  four  arbitrators  shall  hear,  m  an  ap- 
pointed place,  the  parties  or  their  attorneys;  and,  if  they  shall  be  divided  in  opinion,  tliere 
shall  be  chosen  from  the  neighboring  countries  an  unbiassed  man  of  ability,  who  shall 
join  with  the  arbitrators  in  determining  the  question.  If  the  matter  in  dispute  is  between 
a  subject  of  the  Cantons  and  Leagues  and  the  King  of  France,  the  Cantons  will  examine 
the  demand,  and,  if  it  is  well  founded,  they  will  present  it  to  the  King;  but,  if  the  King  is 
not  satisfied  with  it.  they  may  call  the  King  before  the  arbitrators,  who  shall  be  sel^-cted 
from  among  impartial  judges  of  the  countries  of  Coire  or  of  Valois,  and  whatever  snaii 
be  decided  by  the  aforesaid  judges,  by  a  judicial  or  amicable  sentence,  shall  be  inviolabiy 
observed  without  any  revocation.  (Tr,-aty  of  P^-rfefal  !'<■<"■ '  '"•'•'Wn  Irance  ana  tin 
Su-iss  Cantons  and  their  .lilies,  Noxrmher  A>,  1516.  ^^.  de  llassan.  Histoire  Ueninile  et 
Raisnnnee  de  la  Diflomatie  Francaise,  Defuis  la  fondation  de  la  mnnarchtt  msqit  1  la 
fin  du  r.'cir  de  Louis  XV I.  Vol.  1.  tSov.  /-/-.  307-30S.  English  translation  hy  John  liassell 
Moore,  History  and  Digest  of  the  [niemalionat  Arbitraltons  to  tWmft  tht  United  i»o(« 
has  been  a  I'arly.  I'ol.  I',  189^,  p.  4^30.) 

Arbitration  is  a  method  very  reasonable,  and  very  conformable  to  the  law  of  nature, 
in  determining  all  di  (Terences  that  do  not  directly  interest  the  safety  of  the  na'W"- 
ThouKh  the  strict  right  may  be  mistaken  by  the  arbitrator,  it  is  still  more  to  be  feared  that 
it  will  he  overwhelmed  by  the  fate  of  arms.  The  Swiss  have  had  the  precaution,  in  all 
their  alliances  among  themselves,  and  even  in  those  they  have  contracted  with  the  iicign- 
luiiirimr  powers,  to  agree  l>efore-hand,  on  the  manner  in  which  their  ilisputes  were  to  lie 
submitted  to  arbitrators,  in  case  they  could  not  adjust  them  in  an  amicable  manner,  inn 
wise  precaution  has  not  a  little  contributed  to  maintain  ihe  Helvetic  Republic  in  tliat 
flourishing  state  which  secures  its  libertv,  and  renders  it  respectable  throughout  hurope. 
i.\l.  de  rattel.  The  Lau'  of  Xalions;  or  Princifles  of  the  Laiv  of  Sature:  AfpUed  to  the 
Conduct  and  Affairs  of  Sations  and  Sovereigns,  175S,  Translated  from  the  French.  ^  o(.  /, 
7760,  /■/>.  i44-i4S-) 

XXVIII.  Recites  a  seisure  and  detainer  of  English  efTects  in  the  dominions  of  the 
King  of  Denmark,  since  the  18th  of  May.  1652.  The  States  hereby  oblige  themselves  to 
m.ike  the  same  good  to  tlie  owners,  to  pay  5000  pounds  English,  to  answer  ihe  expence  ol 
a  proper  ciiMuiry,  and  il^KIO  rixdollars  to  whom  his  llisihncss  shall  numiiiatc  iminediately; 
which  are  ti  be  dKhicted  nut  of  the  gross  sum  to  be  awarded,  and  to  enter  into  bonds  ot 
arbitration,  in  the  penally  of  l-tO.O(K).  by  projwr  persons  in  London,  to  answer  the  award. 

XXX  'lliat  four  ronimissioiurs  shall  be  named  on  both  sides  to  meet  at  London,  the 
19th  of  May  next,  who  will  be  authorised  to  examine  the  injuries  and  losses  in  the  year 
loll  and  after  to  Ihe  18th  of  May  1652.  as  in  the  Last  Indies.  Greenland.  Muscovy,  lirasil. 
&c  That  if  the  said  dilTerciKcs  be  not  adjuste.l  in  three  months,  to  he  computed  from  the 
said  18th  day  of  Mav.  in  such  case  the  same  shall  Ik-  submitted  to  the  arbitration  of  the 
Swiss  Cantons  who  shall  delccate  commissioners  for  that  purpose,  and  shall  give  judgment 
within  six  months:  within  which  time  whatever  the  majority  of  such  commissioners  deter- 
mine shall  be  bit  ling  to  both  parties,  and  duly  performed.  (Treaty  of  feace  and  Union 
between  Oliver  C.omwell,  as  I'roteclor  of  Kngland,  and  the  Lnited  Provinces  0/  the  Neth- 
erlands at  Westminster,  .April  5th,  1645.  Charles  Jcnkinson.  A  Collection  of  all  the  Treaties 
of  Peace,  Alliance,  and  Commerce,  hefu-een  Orcot-Kritain  and  other  Powers  from  the 
Treaty  signed  at  Munster  in  164S,  to  the  Treaties  signed  at  I  arts  in  1783,  V  ol.  1,  17S5,  pp. 
47-4S.) 

XXIV  That  the  debts  due  to  the  English  from  the  King,  on  account  of  the  previous 
seoue'strat'ion  of  their  efTects.  shall  be  discharged  within  two  years,  And  the  recognizances 
made  to  the  King  or  any  of  bis  subjects  by  the  Cnglisr.  shall  be  canccllcu  and  rescinded. 

22<- 


TEMFORABY  JUDICIAL  COMMISSIONS 


227 


■J 


i: 


XXV.  Th«  adjusting  of  all  mattcri  in  dispute  shall  be  referred  to  the  arbitration  of 
Dr.  Walter  Walker,  John  Crowther,  Ur.  Jeronimus  a  Silva,  lecrctary  of  the  embawy,  and 
Francis  Ferreira  Rabcllo,  agent  thereof,  who  shall  sit  at  London  the  20th  of  July  next, 
O.  S.  who  shall  deliver  their  sentence  on  or  hc-fore  the  first  day  of  September  next.  And 
the  same  being  then  undetermined,  shall  afterwards  he  referred  entirely  to  the  Protector's 
consul,  whose  award  shall  be  fin.il  ami  decisive  ami  what  shall  on  their  decree  be  found 
justly  due,  shall  be  paid  by  an  allowance  or  remittance  of  one  moiety  of  the  duties  usually 
paid  until  the  sum  awarded  lie  fully  s.-itisried. 

The  three  last  articles  are  general  confirmations  of  the  previous  particulars,  and  limit! 
the  ratification  to  six  months.  (Treaty  of  Ptaee  and  Alliance  hehiu-en  Oliver  Cromwell, 
I  roifcior  of  hngland,  and  John  IV.  King  of  Portugal,  inaJr  at  Westminster,  July  10,  1654, 
Charlei  Jenktnson,  A  ColUclion  of  all  Ihe  Trealiet  of  I'.-acc.  Atliance,  ami  Commerce, 
hetiwrn  Ori-al-Hrilam  and  ollter  Pmvcrs.  l-'mm  lit,-  Treaty  signed  at  Mumler  in  /fli«,  to 
Ihe  Treaties  signed  at  Paris  in  17S3,  I'ol.  /,  trSj,  ff.  71-75) 

XXIV.  Whereas  since  the  year  1640  many  prizes  have  been  taken  on  l)oth  sides,  com- 
missiiincrs  shall  be  appointed  to  settle  the  same  at  London,  and  if  they  do  not  determine  in 
SIX  months  and  a  fortnight,  the  city  of  Hamburg  shall  be  desired  to  delegate  commission- 
ers, wliose  arbitration  shall  Iw  final,  and  their  award  made  within  four  months;  Iml  if 
neither  shall  make  an  award,  no  force  shall  be  used  on  either  side  until  after  the  expira- 
tion nf  four  months  more. 

XXV.  The  right  of  either  to  the  three  forts  of  Pentacost,  St.  John,  and  Port  Royal  in 
America,  shall  be  determined  by  the  same  commissioners.  (Treaty  of  Peace  between 
Louis  XIV.  King  of  France  and  Navarre,  and  the  Lord  Protector  of  the  Republic  of 
England,  ScotLind,  and  Ireland,  at  Westminster,  N'ovembcr  i.  1655,  Charles  Jenktnson.  A 
Collection  of  all  Ihe  Treaties  of  Peace.  Alliance,  and  Commerce,  hcf.ccen  Grcat-Hrilain  and 
Other  Powers,  from  the  Treaty  signed  at  Munster  in  /rt,v',  to  the  Treaties  siiined  at  Paris 
m  17XJ.  lol.  I,  17S5,  pp.  84-83) 

VIL  Relates  to  the  manner  of  adjusting  differences  and  captures  of  either  siilc  ac- 
cordiiiK  to  the  tenor  of  the  Xlllth  article  of  the  treaty  of  L'psal,  and  is  only  a  repel ition 
thereof,  and  an  agreement,  in  case  of  the  same  not  being  aflTectcd  for  a  future  convention. 
fTreatv  between  Charles  Gustavus.  Kina  of  Sweden,  and  Oliver  Cromwell.  Prnleetor  of 
Fngland,  whereby  the  Treaty  of  Alliance  made  between  Ihe  said  States,  .\pril  11,  1654  is 
conhrmed  and  explained.  l)oHe  at  Wt-stmirister.  .lu'v  I5tli.  and  the  Comention' annexed 
July  17,  1656.  Charles  Jenkinson,  A  Collection  of  all  the  Treaties  of  Peace,  Alliance,  and 
loiiimerce  between  Grcat-Hrilain  and  other  Jvwcrs,  Iroiit  the  Treaty  signed  at  Munster  in 
1648,  to  the  Treaties  signed  at  Paris  in  17SJ,  Vol.  /,  /,-,Vj;,  p.  99.) 

The  L'nited  States  in  Congress  assembletl  shall  als'i  Ix-  the  last  resort  on  appeal  in  all  dis- 
putes and  differences  now  subsisting  or  that  hereafter  may  arise  between  two  or  more 
States  concerning  boHndar>-,  jurisdiction  or  any  other  cau.se  whatever;  which  authority 
shall  always  be  exercised  in  the  manner  following.  Whenever  the  legislative  or  executive 
authority  or  lawful  agent  of  any  State  in  controversy  with  another  shall  present  a  petition 
to  Congress,  stating  the  matter  in  oiiestion  and  praying  for  a  hearing,  notice  thereof  shall 
be  given  by  oriler  of  Congress  to  the  K-Rislative  or  executive  authorit,.v.  of  the  other  Slate 
■n  "'"jroversy,  and  a  day  assigned  for  the  appearance  of  the  parties  by  their  lawful  agents, 
who  shall  then  he  directed  to  appoint  by  joint  consent,  commissioners  or  judges  to  con- 
stitute a  court  for  hearing  and  determining  the  matter  in  question :  hut  if  they  can  not 
agree.  Congress  shall  name  three  persons  out  of  each  of  the  United  States,  and  from  the 
hst  of  such  persons  each  party  shall  alternately  strike  out  one,  the  petitioners  beginning, 
until  the  numbers  shall  he  reduced  to  thirteen;  and  from  that  luitnber  not  less  than  seven, 
nor  more  than  nine  names  as  Congress  shall  direct,  shall  in  the  presence  of  Congress  be 
drawn  out  by  lot.  ami  the  persons  whose  names  shall  he  so  drawn  or  anv  five  of  them, 
shall  lie  commissioners  or  judges,  to  hear  an<l  finally  determine  the  controversy,  so  alwavs 
as  a  ma.ior  part  of  the  judges  who  shall  hear  the  cause  shall  agree  in  the  determinaticm : 
and  if  either  party  shall  neglect  to  attend  at  the  day  appointed,  without  showing  reasons, 
w-hioh  Congress  shall  judge  sufficient,  or  lieing  present  shall  refuse  to  strike,  the  Congress 
sha  prorecil  to  nnminafe  throe  persons  out  of  each  State,  an.l  the  Secretary  of  Congress 
sliall  strike  in  N-half  of  such  party  .ibsent  or  refusing;  and  tha  judgment  and  sen- 
tence of  the  court  to  he  appointed,  in  the  manner  liefore  prescribe<l,  shall  be  final  and  con- 
clusive: and  if  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of  such  court,  or 
to  appear  or  defend  their  cl.iim  or  cause,  the  court  shall  nevertheless  proceed  to  pronounce 
sentence,  or  iudgment.  which  shall  in  like  manner  be  final  and  derisive  the  i,iH™,ent  or 
sentence  and  other  proceedings  being  in  either  case  transmitted  to  Congress,  and  lodged 
among  the  acts  of  Congress  for  the  security  of  the  parties  concerned :  provided  that  every 


mm 


!  J 


fel' 


*^" 


228  THE   UNITED  STATES:   A  STUDY    IN    INTERNATIONAL  ORGANIZATION 

commitiioiw r,  htfort  h«  iili  in  ji'dgment,  »h»ll  take  an  oath  to  b«  adminiitered  by  one  of 
the  iudcet  of  the  lupretnc  or  »nperior  court  of  the  State  where  the  cau«e  jhall  be  tried, 
•well  and  truly  to  hear  and  iletrrmine  th<r  matter  in  iiucstion.  according  to  the  ^»t  ol  hi« 
judRment.  without  favour,  affection  or  hope  of  reward:"  provided  alto  that  no  State  thall 
be  deprived  of  territory  for  the  brnclil  of  the  V  nittd  Slates.  .       ,  „  i 

All  controvertie*  concerning  the  private  riulit  of  soil  claimed  under  difterent  grantt  ol 
two  or  more  Slates,  whose  jurisdi.tion  at  they  may  respect  such  lands,  and  the  States 
which  passed  such  grants  are  adjusted,  (he  said  grants  or  either  of  them  being  at  the 
tame  time  claimed  to  have  originated  antecedent  to  such  seltleimnt  of  jurisdiction,  shal 
on  the  petition  of  either  party  to  the  Congress  of  the  United  States,  be  finally  determineU 
as  near  as  may  be  in  the  same  manner  a«  is  before  prescribed  for  deculiiig  disputes  re- 
k|>ecling  territorial  jurisdiction  between  different  States,  (.trlicles  of  ConfcJeriiUvn,  IJJJ, 
Article  l.\.  taraerafh  l.    Knised  Statutes  of  the   United  Slatei,  1II78,  pp.  9-10.) 

The  agents  attending,  the  Court  pronounced  the   following  sentence  or  judgtnent: 

This  cause  has  been  well  argued  by  the  learned  counsel  on  both  sides. 

The  court  are  now  to  pronounce  their  sentence  or  Judgment. 

We  are  unanimously  of  opinion,  that  the  sute  of  Connecticut  hat  no  right  to  the  lands 
in  controversy.  ......  .  ..  .     n  .u. 

We  are  also  unanimously  of  opinion,  that  the  jurisdiction  and  pre-emption  of  all  tne 
territory  lying  within  the  charter  boundary  of  Pennsylvania,  and  now  claimed  by  the  state 
of  Connecticut,  do  of  riwht  Iwlong  to  the  state  of  f'ennsylvania.  (Sialt-  of  I'enHtyliama  v. 
Sialf  of  Conneilicut.  Court  of  Commiisiontrs  I'nder  vlh  of  ArlicUi  of  (.onifderatwn. 
Journals  of  the  American  Congress,  eduion  of  iHjj,  I'ol.  11',  p.  14°.  decided  December 
30,  I /Si.) 

The  great  cause  between  Connecticut  and  Pennsylvania  has  been  decided  in  favor  of 
the  latter.  It  is  a  singular  event.  There  are  few  instances  of  independent  states  submit- 
ting their  cause  to  a  court  of  justice.  The  day  will  come  when  all  disputes  in  the  great 
republic  of  Europe  will  be  tried  in  the  same  way.  and  .\merica  be  quoted  to  exemplify  the 
wisdom  of  the  measure.  (Extract  from  letter  of  Robert  K.  Uvinaslon,  S.-crelary  of  Fur- 
eiiin  Affairs,  to  La  Faxclte.  Ia»uar\  /<>.  17X3.  Vrancis  Wharton,  The  Revolutionary  Diplo- 
matic Correspondence  of  the  United  Slates.  Vol.  Vl,  1889.  p.  ioi.) 


CHAPTKR  XI 


TEMPORARY    Jt'DRIAI.    COMMISSIONS 

Bit  the  Court  of  Prize  was  neither  the  most  interestinR  nor  the  most  im- 
portant judicial  organization,  either  for  the  people  of  the  United  States  or  for 
the  world  at  large.  lUit  it  was  one  of  the  origins  of  the  Supreme  Court.  The 
other  origin  which  is  likely  to  prove  further  that  the  Revolutionary  statesmen, 
as  well  as  the  fathers  of  the  Constitution,  were  l)enefactors  of  their  kind,  was 
the  machinery  devised  for  the  adjustment  of  quarrels  between  the  States  bv 
means  of  temporary  commissions ; 

The  I'nited  States  in  Congress  assembled  shall  also  l>e  the  last  resort  on 
appeal  in  all  disputes  and  differences  now  subsi.sting  or  tiiat  hereafter  m.-iy 
arise  iHtwtin  two  or  more  States  concerning  boundary,  jurisdiction  or  any 
other  cause  whatsoever;  .  .  . 

-Ml  controversies  concernit  the  priv.itc  t  of  soil  claimed  under  differ- 
ent grants  of  two  or  more  States,  wtux'  ji.isdictions  as  they  may  respect 
such  lands,  nnd  the  States  which  passed  such  grants  are  adjusted,  the  said 
grants  or  either  of  them  being  at  the  same  time  cl;iimed  to  have  originated 
aiitecerlcnt  to  such  settlement  of  jurisdiction,  shall  on  the  petition  of  either 
party  to  the  Congress  of  the  I'nited  States,  be  finally  determined  as  near  as 
may  be  in  the  same  manner  as  is  before  prescribed  for  deciding  disputes 
respecting  territorial  jurisdiction  between  different  States.' 

The  .Articles  of  Confederation  apparently  consitlered  the  Congress  as 
the  successor  of  the  King  in  Council.  They  authorized  it  therefore 
to  direct  the  agents  of  the  States  in  controversy  to  appoint  commissioners 
or  judges  to  constitute  a  court  for  hearing  and  determining  the  matter  in 
question.  Failing  their  agreement.  Congress  was  authorized  to  "  name 
three  persons  out  of  each  of  the  United  States,"  that  is  to  say,  thirty-nine  in 
all,  from  which  list  the  agents  of  the  parties,  beginning  with  the  defendant, 
should  alternately  strike  a  name  until  thirteen  were  left,  from  which  seven  or 
nine,  in  the  direction  of  Congress,  should  lie  drawn  by  lot,  of  whom  the  per- 
sons whose  names  were  drawn,  or  any  five  of  them,  should  be  commissioners 
or  judges  of  the  commission  charged  with  the  determination  of  the  disjiute 
Upon  the  absence  of  one  or  the  other  party,  or  the  refusal  of  one  of  the  parties 
present  "  to  strike,"  the  secretary  of  the  Congress  was  to  strike  in  lieu  thereof 
and  the  commissioners  were  thereupon  to  be  selected  in  the  manner  above 

•Article  IX,  Articles  of  Confederation,  1777. 

sag 


Naturt 

ofthe 

CommiMiont 


ItiOufncc 
o«  PrivT 
Council 


230 


THE   fNITEP  states:   A   STfDY    IN    INTCKNATIONAL  OBCANIZAT10N 


described.  The  commissioners  thus  appointed  formed  the  court  which  was  to 
assume  jurisdiction  of  the  dispute,  even  although  «ine  party  or  the  other  might 
refuse  to  submit  the  case  or  ap{)ear  or  defend  the  claim.  The  court  thus  con- 
stituted was  to  proceed  to  pronounce  final  sentence  or  judgment,  which,  to- 
gether with  the  other  pnKeedings,  was  to  Iw  transmittetl  to  the  Congress  and 
by  it  filed  for  the  security  of  ♦'le  parties  concernctl.  Each  commissioner  was 
to  take  an  oath  Iwfore  a  court  of  record  in  the  State  in  which  the  cause  was  to 
be  tried,  to  decide  the  controversy  "  according  to  the  best  of  his  judgment, 
without  favor.  atTectii>n,  or  hope  of  reward. "  And  no  State  was  to  be  "  tle- 
prived  of  territory  for  the  benefit  of  the  United  States." 

It  was  natural  that  the  States  which,  as  has  l)een  pointed  out,  had  renounced 
the  right  to  enter  into  compacts  and  to  conclude  agreements,  which  maintained 
armaments  merely  for  defensive  purposes,  and  which  had  renounced  the  right 
to  resort  to  war  against  one  another,  should  have  found  it  necessary  to  devise 
a  method  of  settling  the  disputes  which  had  frequently  arisen  Inrfween  and 
among  them,  and  which  were  certain  to  arise  again  in  the  matter  of  Ixjundaries. 
It  was  also  natural  that  the  Congress  should  take  advantage  of  this  certainty 
to  provide  a  method  for  settling  boundary  disputes  which  might  arise 
Ixrtween  the  States.  It  was  further  natural  that  they  should  adopt  the 
method  of  the  Privy  Council,  which  either  settled  the  disputes  itself  or  referred 
them  to  committees  or  to  courts,  as  the  case  might  lie,  and  that  the  States 
.should  adapt  the  machinery  at  hand  to  their  own  circumstances  and  needs. 
Professor  Jameson  has  called  attention  to  the  striking  resemblance  between 
the  method  of  the  Articles  of  Confederation  and  that  devised  by  Grenville's 
Act  of  1770  for  the  trial  of  disputed  elections.  His  language  is  so  in  point, 
and  is  so  capable  of  a  larger  application,  that  it  is  quoted  in  full: 

It  seems  obvious  that  we  have  here  a  reproduction  of  the  m.-ichincry  pro- 
vided by  Mr.  (Irenvilie's  famous  Act  of  1770  for  the  trial  of  <lis|>uted  elec- 
tions to  the  House  of  Commons.  I'p  to  tiiat  time,  disputed  elections  had  for 
nearly  a  century  Ix-en  [lassed  upon  by  the  whole  1  louse.  The  natural  result 
of  such  a  |)rf>ceilure  was  a  scandalous  disregard  of  justice,  those  coiUestants 
who  belonged  to  the  majority  party  being  uniformly  admitted,  their  com- 
petitors as  uniformly  rejected.  To  remedy  this  abuse.  Mr.  Grenville's  act 
provided  that  forty-nine  members  should  be  chosen  l)y  ballot,  and  that  frtmi 
this  list  the  petitioner  and  the  sitting  member  should  strike  out  nanies  alter- 
nately until  the  number  was  reduced  to  thirteen, —  a  process  which  later 
became  known,  in  the  slang  of  the  House,  as  "  knocking  out  the  brains  of  the 
committee,"  each  contestant  excluding  any  able  man  likely  to  assist  the  cause 
of  his  opponent.  Thes»!  thirteen,  with  an  additional  member  noniinatcd  by 
each  contestant,  constituted  the  authoritative  tribunal.  The  act.  celebrated 
at  the  time,  was  of  course  perfectly  well  known  to  lawyers  in  .Kmerica  six 
years  after  its  passage.  It  seems  plain  that,  with  the  natural  substitution  of 
thirty-nine  for  forty-nine,  we  have,  in  this  peculiar  process  established  shortly 
before  in  England,  the  model  on  which  Congress  framed  its  scheme  for  con- 


TCMmKARY   JIDICIAL  COMMISSIONS 


231 


stituling  temporarily  a  judiciary  body  when  one  was  required   for  land 
disputes.' 

The  history  of  the  proceeding*  under  Ms  portion  of  the  ninth  Article  of 
Confederation  is  (juickly  told.  One  commis.sion  or  court  was  constituted  by 
the  agents  of  the  parties  under  the  article.  an<l  this  commission  decided  the 
one  case  which  the  article  has  to  its  cretlit.  A  temporary  tribunal  was  formed 
in  three  additional  instances,  in  one  nf  which  the  ajjents  of  tiie  parties  were 
unable  to  a^rce  upon  the  iHTsonncl.  and  resort  was  therefore  had  to  the  mcthcxl 
of  striking  provided  by  the  article.*  In  these  three  instances  the  cases  were 
settled  out  of  court  by  the  parties  themselves.  Petitions  to  form  tribunals 
were  presented  to  Conpress  in  other  cases,  but  no  courts  were  created,  and 
upon  the  dissolution  of  the  Confederation  some  eleven  boundary  dispirtes  were 
outstanding  and  unsettled.'  The  one  cause  actually  decided  by  commissioners 
or  judges  in  the  manner  provided  by  the  ninth  article,  is,  however,  a  very 
famous  ca.se.  in  which  blood  had  flowed,  which  of  itself  was  sutTicient  to 
show  the  disadvantages  of  the  old  method,  or  rather  of  no  method,  ami  the 
possibilities  of  the  new  .system. 

I'pon  the  signature  of  the  Articles  of  Confederation  by  Maryland  on  tin- 
1st  day  of  March,  1781.  they  l)ecame  the  law  of  the  land,  and  shortly  there 
after  Pennsylvania  took  advantage  of  the  n..ith  of  the  articles  in  order  to  .settle 
a  dispute  with  Connecticut  concerning  a  large  strip  of  territory  on  the  east 
t)ank  of  the  Susciuehanna  Hiver,  and  which  today  forms  the  C(ninty  of  I.u/erne 
in  the  State  of  Pennsylvania.  .\s  the  matter  is  tints  important,  and  the  details 
of  the  procedure  interesting,  some  relevant  pas.sages  are  (|uoted  from  the  docu- 
ments in  this  case.  The  Journal  of  Congress  on  .November  3.  1781,  coi^tains 
the  follow  ing  entry : 

A  petition  from  the  supreme  executive  council  of  the  Conimonwe.ilih  of 
rcn.sylvania  was  read,  stating  a  matter  of  dispute  between  the  said  Statt: 
and  the  State  of  Connecticut,  respecting  sun<lry  lands  lying  on  the  east  lir.uuh 
of  the  River  Susquehanna,  and  praying  a  hearing  in  the  premises,  agreealjly 
to  the  9th  article  of  the  Confederation.' 

On  the  14th  of  the  same  month,  Congress  assigned  the  fourth  Monday  in  the 
following  June  for  the  appearance  of  the  States  by  their  '^w  'ul  agem>,  and 
issued  notice  thereof  in  the  following  form  to  the  States  in  c^iUtroversy : 

To  the  legislative  authority  of  the  State  of  Connecticut  [I'ennsylvaniaJ  : 

'J.  Franklin  Jameson,  E^ns  in  thv  Coiistilulionat  History  of  the  Vnitcd  Slates, 
pp.  44-5.  ' 

=  J.  C.  Bancroft  Havis.  Federal  Courts  Prior  to  the  Adoption  of  the  Constitution,  \ii 
t.  S.,  Apfendix,  p.  Ixiii. 

-  Ibid.,  p.  xxxiv. 

*  Journals  of  the  Continental  Congress,  Vol.  xxi,  p.  1092. 


Pfmnsyhanta 


"i^ 


232 


THE  UNITED  STATES:  A  STUDY  IN    INTERNATIONAL  ORGANIZATION 


1*l' 


It  is  hereby  made  known,  that  pursuant  to  the  ninth  article  of  the  Con- 
federation, the  supreme  executive  council  of  the  State  of  F'ensylvania,  have 
presented  a  pi-tition  to  Congress,  st.iting  that  a  controversy  has  long  subsisted 
between  the  said  State  of  f'ensylvania,  and  the  State  of  Connecticut,  respect- 
ing sundry  lands  lying  within  the  nortiiem  boundary  of  the  said  State  of 
fensylvania.  and  praying  for  a  hciriiig  in  pursuance  of  the  nhuh  article  of 
the  Confederation;  and  that  the  4th  Monday  in  June  next,  is  assigned  for  the 
appearance  of  the  said  States  of  Pensylvania  and  Connecticut,  by  their  law- 
ful .ngents,  at  the  place  in  which  Congress  shall  then  sit,  to  proceed  in  the 
premises  as  by  the  said  Confederation  is  directed.' 

On  the  appointed  day  the  States  appeared  by  their  agents:  for  Pennsyl- 
vania. Messrs.  William  Bradford,  Joseph  Reed,  James  Wilson  and  Jonathan 
Dickinson  Sergeant,  and  their  credentials  were  spread  upon  the  Journal.* 
For  Connecticut,  Eliphalet  Dyer  appeared  and  presented  credentials,  likewise 
spread  upon  the  Journal,  showing  the  appointment  as  duly  accredited  agents 
of  that  State,  Messrs.  Eliphalet  Dyer,  William  Samuel  Johnson  and  Jesse 
Root.^  On  June  27th  Connecticut  moved  to  postpone  the  proceedings  until 
"  after  the  termination  of  the  present  war."  *  This  motion  was  denied.  On 
the  16th  of  July  the  agents  of  the  two  States  were  directed  "  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a  court  for  hearing  and 
determining  the  matter  in  question,  agreeably  to  i  '^th  Article  of  the  Con- 
federation." *  The  agents  complied  with  this  direction  and,  on  August  12th, 
Congress  was  informed  by  a  paper  signeil  by  the  agents  of  f  contending 
States,  and  spread  ujwn  the  Journal,  that  they  had  agreed  u\K>n  William 
Whipple  of  New  Hampshire,  Major  General  Xathaniel  Greene  of  Rhode 
Island.  David  Brearley  and  W'illiam  Churchill  Houston  of  New  Jersey,  Cyrus 
Griffin  and  Joseph  Jones  of  Virginia,  and  John  Rutledge  of  South  Carolina, 
any  five  or  more  of  whom  were  to  constitute  the  court  and  to  have  authority 
to  proceed  and  to  determine  the  matter  aiul  difference  l)etwcen  the  States.* 
It  was  further  agreed  by  and  l)etween  the  agents  of  the  litigating  States  that 
the  court  should  as,seinble  at  Trenton,  X.  J.,  on  the  12th  day  of  Xovemljer.^ 
On  .\ugust  2i,  1782,  the  agents  reported  to  Congress  that  General  Greene  could 
not  attend,  that  Mr.  Rutle<lge  had  declined,  and  that  they  had  therefore  chosen 
Thomas  Xeilson  of  Virginia  and  Welcome  Arnold  of  Rhode  Island  in  their 
stead.  Congress  thereupon  directed  commissions  to  i.ssue  to  the  judges  ac- 
cording to  the  amended  list,  and  on  the  28th  of  the  same  month  the  form  of 
commission  was  settled  and  spread  upon  the  Journal." 

• /oMriKi/j  of  lite  Coiilincntal  (  onarrss,  Vol    xvi,  p.  1116. 

2//i,/.  \..l    xxii,  p.  345,     Sebiion  of  June  24,  1782. 

» lhi,l..  p.  M7. 

*  Ihul..  p.  .155. 

B  IHJ.,  p.  .?92. 

"  lhi,l..  \,<\    xxiii.  p.  461. 

'  Ihiii.,  I).  S29.    Session  of  August  23,  1782. 

»  /hid.,  p.  533. 


TEMPORARY   JUDICIAL  COMMISSIONS 


233 


It  was  finally  agreed  by  and  between  the  parties  litigant  that  the  court 
should  assemble  at  Trenton,  N.  J.,  on  the  12th  of  November  of  the  same  year. 
The  court  convened  on  the  day  assigned,  Xovember  12th,  at  Trenton,  with 
only  Messrs.  Brearley  and  Houston  present.'  They  adjourned  from  day  to 
day  to  the  18th,  when  enough  members  being  present,  the  court  was  organized, 
with  Messrs.  Whipple,  Arnold,  Brearley,  Houston  and  Griffin  in  attendance 
as  memliers.  On  the  22d  of  the  month  the  agents  on  each  side  put  in  a 
written  brief,  showing  the  claims  of  their  respective  States,  based  in  each  case 
upon  charters  from  the  mother  country.  We  have  the  word  of  the  commis- 
sioners that  the  case  was  e(|ually  well  argued  on  both  sides,  and  we  have  their 
unanimous  opinion  in  behalf  of  the  State  of  Pennsylvania —  for  the  commis- 
sioners had  agreed  thit  the  minority  should  yield  to  the  majority,  so  that 
the  decision  might  be  unanimous,  and  in  framing  their  view  they  apparently 
heeded  the  sage  advice  of  my  Lord  Mansfield  to  a  lawyer  turned  judge  and 
not  very  well  grounded  in  the  law,  to  abstain  from  reasons  for  his  judgment. 
The  award  of  the  court  follows  in  full : 


The  court  met  —  Present  as  before. 

The  agents  attending,  the  Court  pronounced  the  following  sentence  or 
judgment: 

This  cause  has  been  well  argued  by  the  learned  counsel  on  both  sides. 

The  court  are  now  to  pronounce  their  sentence  or  judgment. 

We  are  unanimously  of  opinion,  that  the  state  of  Connecticut  has  no  right 
to  the  lands  in  controversy. 

We  are  also  unanimously  of  opinion,  that  the  jurisdiction  and  pre-emption 
of  all  the  territory  lying  within  the  charter  boundary  of  Pennsylvania,  and 
now  claimed  by  the  State  of  Connecticut,  do  of  right  belong  to  the  state  of 
Pennsylvania.' 

The  commissioners  were  of  the  opinion,  as  stated  in  a  communication  dated 
December  31,  1782,  addressed  to  John  Dickinson,  then  President  of  Pennsyl- 
vania, that  the  question  for  them  to  decide,  and  actually  decided  by  them,  was 
the  right  of  Pennsylvania  to  the  .soil  in  its  title  of  sovereign,  and  that  the 
claims  of  individuals  to  the  soil  whether  based  upon  grants  from  Connecticut 
or  from  Penn.sylvania  were  unaffected  by  the  decision.  The  Honorable  Cyrus 
Griffin,  the  fifth  member  of  the  court,  made  a  similar  statement  in  a  letter 
dated  Septemlwr  15,  1796,  and  vouchsafed  the  following  interesting  informa- 
tion concerning  the  procedure  of  the  commissioners  in  the  trial  and  disposition 
of  the  case : 

Before  the  commissioners  determined  that  important  contest  between 
Pennsylvania  and  Connecticut,  it  was  agreed : 

1st.  That  the  reasons  for  the  determination  should  never  be  given. 

•  Davis,  Federal  Courts,  131   L'.  S.,  Aft'endix,  p.  Iv. 

*  Journals  of  the  American  Congress.  1823,  Vol.  IV,  p.  140. 


I. 


■  i-i- 


234  THE  UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 


«^" 


■a 


m 


Two 

Othrr 

CaHs 


2nd.  That  the  minority  should  concede  the  determination  as  the  unanimous 
opinion  of  the  court. 

No  doubt  sufficient  reasons  appeared  to  us  to  adopt  these  preliminary 
points.  ... 

Hut  I  can  assure  you,  sir.  that  the  commissioners  were  unammously  of 
opinion  that  the  private  right  of  soil  should  not  be  affected  by  the  decision. 
The  decision  was  not  to  reach  the  question  of  properly  in  soil.' 

The  international  significance  of  the  strange  and  novel  experience  of  a 
State  appearing  against  a  State  in  a  tribunal  of  justice  was  not  lost  upon 
tht  piiblic  men  of  the  day.  No  less  a  personage  than  Robert  R.  Livingston, 
then  Secretary  for  Foreign  Affairs  of  the  Confederation,  thought  it  of  suffi- 
cient moment  to  refer  to  it  in  a  letter  dated  January  10,  1783,  addressed  to 
the  Manjuis  of  Lafayette,  in  which  he  felt  justified  in  saying: 

The  great  cause  between  Connecticut  and  Pennsylvania  has  been  decided 
in  favor  of  the  latter.  It  is  a  singular  event.  There  are  few  instances  of 
independent  states  submitting  their  cause  to  a  court  of  justice.  The  day 
will  come,  when  all  disputes  in  the  great  republic  of  Europe  will  be  tried  in 
the  s,inie  way,  and  America  be  quoted  to  exemplify  the  wisdom  of  the 
measure.' 

The  cases  of  Massachmetts  v.  AVk'  York^  and  South  Carolina  v. 
Ccoryia '  were  disputes  in  which  commissioners  were  appointed  and  courts 
constituted  for  the  trial  of  the  can.ses  in  accordance  with  the  ninth  of  the 
Articles  of  Confederation,  and  although  the  cases  never  came  to  trial,  as  the 
disputes  were  settled  out  of  court,  they  are  interesting,  inasmuch  as  the  case 
of  Massachusetts  v.  Xnv  York  is  the  only  one  in  which  a  court  had  been 
appointed  by  agreement  of  the  agents  which  did  not  come  to  trial;  and  the 
case  of  South  Carolina  v.  Georgia  is  interesting  and  important  in  that  it  is 
the  only  case  or  controversy  iK'tween  the  States  under  the  ninth  article  in  which 
the  agents  were  unable  to  agree  upon  the  members  to  form  the  court,  and 
therefore  the  only  one  in  which  resort  was  had  to  the  method  of  striking  pro- 
vided by  the  ninth  article.  The  facts  and  procedure  in  these  cases  will  there- 
fore be  briefly  stated. 

On  June  3.  1784,  Congress  received  the  report  of  the  committee  to  which 
it  had  referred  "  a  petition  from  the  legislature  of  the  Commonwealth  of 
^lassachusetts,  praying  that  a  Federal  Court  may  be  appointed  by  Congress 
to  decide  a  dispute  between  the  said  Commonwealth  and  the  State  of  New 
York,"  *  and  tlic  Conj,'ress  resolved  "  that  the  first  Monday  in  December  next 


>  Henrj-  M.  Hoyt,  Brief  of  a  Title  in  the  S,-xentten  Toutishifis  of  the  County  of 
Lucerne,  a  Syllabus  of  the  Controversy  bet:>.een  Connciticul  and  PenHsyhania,  1879,  pp. 
45,  46. 

-■  Krancis  Wharton,  mplcmatic  Correspondence  of  the  American  Rrt-olulion,  Vol,  6,  p. 
20J.  See  also  Jare<l  Sparks,  The  Diplomatic  Corrtsfondcnce  of  the  American  Revolution 
U830),  Vol.  X,  p.  21. 

^  131  L'.  S..  .Ippendix,  p.  Ixi. 

*lhid.,  p.  Ixii. 

'  /St/.,  i>.  i.-^i. 


TEMPORARY  JUDICIAL  COMMISSIONS 


235 


be  assigned  for  the  appearance  of  the  said  States  of  Massachusetts  and  New 
York  by  their  lawful  agents,  at  the  place  at  which  Congress  shall  then  be 
sitting." » 

From  the  petition  of  the  State  of  Massachusetts,  it  appeared  that  this 
State  claimed  the  tract  of  land  Ijetween  42"  2'  i\.  and  44"  IS'  N.,  which 
extended  westwardly,  in  accordance  with  the  terms  of  its  charter,'  to  the 
"  Southern  Ocean,"  which  contention  was  denied  bv  the  State  of  New  York 
as  inconsistent  with  its  charter.  Therefore,  on  December  8.  1784,  the  litigat- 
ing States  appeared  by  their  agents  and  presented  their  credentials,  which 
were  spread  upon  the  Journal.  The  credentials  of  each  were,  by  direction  of 
Congress,  examined  by  the  agents  of  the  two  States  and  found  to  be  without 
objection,  whereupon,  on  December  10th,  the  agents  were  "  directed  to  appoint, 
by  joint  consent,  commissioners  or  judges  to  constitute  a  court  for  hearing 
and  determining  the  matter  in  question,  agreeable  to  the  9th  of  the  articles 
of  confederation  and  perpetual  imion."  *  The  agents  complied  with  the  direc- 
tion  of  Congress,  and  on  June  9,  1785,  the  agents  of  the  two  States,  namelv, 
John  Jay,  Rol)ert  R.  Livingston  and  Walter  Livingston,  on  l)ehalf  of  New 
York,  and  John  Lowell,  James  Sullivan.  Theophilus  Parsons.  Rufus  King  and 
S.  Holton.  on  behalf  of  Massachusetts,  informed  Congress,  in  a  paper  to 
which  they  affixed  their  signatures,  that  they  had  selected  as  judges,  Thomas 
Johnson.  George  Wythe.  George  Reed.  James  Monroe.  Lsaac  Smith.  William 
Patterson.  Samuel  Johnson.  William  Fleming  and  John  Sitgreaves.''  The 
agents  requested  that  commissions  might  l)e  issued  to  the  judges  and  that  they 
be  notified  to  meet  at  Williamsburg.  \'a..  on  the  third  Tuesday  of  Xcveniber 
next,  io  hear  and  determine  the  controversy.  The  court,  however,  did  not 
meet,  as  appears  from  the  follov.ing  resolution  of  the  Congress  of  October 
8, 1787: 

\\[hereas  it  appears  by  the  journals  of  Congress  that  a  federal  court  has 
been  mstituted  pursuant  to  the  articles  of  confederation  and  perpetual  union. 
'o  bear  and  determine  a  controversy  respecting  territory  between  the  states 
of  Massachusetts  and  New  York;  and  whereas  it  app,-ars  by  the  representa- 
tions of  the  delegates  of  the  said  states  in  Congress  that  the  said  controversy 
has  ceased,  and  the  same  has  been  settled  and  determined  bv  an  agreement 
entered  into  on  the  16th  day  of  December  last,  by  the  agents  of  the  said 
States,  and  any  further  proceedings  in  or  relative  to  the  aforesaid  court 
having  become  unnecessary. 

Resolved,  That  all  further  proceedinsrs  in  and  relative  to  the  said  federal 
court,  as  also  the  commissions  of  the  judges  thereof,  cease  and  determine.* 

The  agreement  between  the  two  States  was  spread  at  lt..gth  upon  the  Journal 

•/M..  p.  Ixi. 

»  Journals  of  the  American  Congress,  Vol.  iv,  p.  453. 

•  Ibid.,  p.  536. 

*  Ibid..  \>.7%7. 


'in* 


m 


**»* 


236         THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

of  the  Congress,  in  accordance  with  the  provisions  of  the  ninth  article,  that 
"  the  judgment  or  sentence  and  other  proceedings  being  in  either  case  trans- 
mitted to  Congress,  and  lodged  among  the  acts  of  Congress  for  the  security 
of  the  parties  concerned." 

Almost  a  year  to  the  date,  namely,  on  June  1,  1785,  after  the  case  of 
Masstvhusctls  v.  Xnv  i'ork  had  lieen  brought  Ijetore  the  Congress,  that  body 
resolved  that  "  the  second  Monday  in  May  next  be  assigned  for  the  appear- 
ance of  the  states  of  South-Carolina  and  Georgia,  l)y  their  lawful  agents; 
and  that  notice  thereof,  and  of  the  petition  of  the  legislature  of  the  state  of 
South-Carolina,  be  given  by  the  secretary  of  Congress,  to  the  legislative  au- 
thority of  the  state  of  Georgia."  »  As  in  the  case  of  Massachusetts  v.  Nni' 
I'orA',  the  form  of  notice  contained  a  copy  of  South  Carolina's  petition,  from 
which  it  appeared  that  South  Carolina  claimed  certain  lands  lying  between 
North  Carolina  and  a  line  to  !«  run  due  west  to  a  certain  spot  said  to  be  the 
head  of  the  Savannah  River,  a  contention  denied  by  Georgia,  which  insisted 
that  the  source  of  the  Keowee  River  is  to  be  considered  as  the  head  of  the 
Savannah.*  South  Carolina  also  claimed  the  lands  between  a  line  drawn 
from  the  head  of  St.  Mary  River,  the  head  of  the  Altamaha,  the  Mississippi 
and  Florida,  alleging  that  such  lands  were  within  the  limits  of  its  charter,  and 
that  they  were  not  annexed  to  Georgia  by  the  proclamation  of  the  King  of 
Great  Britain,  a  contention  denied  by  Georgia,  which  claimed  the  lands  by 
virtue  of  such  proclamation. 

The  agents  who  were  to  appear  in  the  month  of  May  did  not  do  so, 
because  the  time  had  been  extended.  They  appeared,  however,  on  Septem- 
ber 4,  1786,  the  date  agreed  upon  at  which  time  they  produced  their  creden- 
tials, which  were  spread  in  full  upon  the  Journal.  They  were  then  directed 
by  the  Congress,  as  in  the  other  cases,  "  to  appoint,  by  joint  consent,  commis- 
sioners or  judges  to  constitute  a  court  for  hearing  and  determining  the  matter 
in  question,  agreeable  to  the  9th  of  the  articles  of  confederation  and  perpetual 
union."  •■'  The  agents  were  less  fortunate  than  in  the  case  of  Pennsylvania  v. 
Connecticut  and  Massachusetts  v.  A'ctf  York,  in  that  they  were  unable  to  agree 
upon  the  memliers  of  the  court.  They  therefore  prayed  Congress  to  proceed 
to  strike  a  court  agreeable  to  the  .\rticles  of  Confederation.  The  Congress 
complied  with  this  request,  and  on  the  13th  the  agents  of  the  States  a;.;nded 
On  motion  of  the  delegates  of  Georgia  it  was  thereupon  "  Resched,  That 
Congress  proceed  to  strike  a  court  in  the  manner  pointed  out  by  the  confedera- 
tion." ♦  Three  persons  were  thus  named  from  each  of  the  States,  and  from 
the  list  of  persons  thus  nametl  each  party  alternately  struck  until  the  number 

'  Journals  nf  the  American  Congress,  Vol.  iv,  p.  529. 
-■  131  I'.  .'^..  .!/'/'.,  p.  Kii. 

^Journals  of  the  American  Congress,  Vol.  iv,  p.  693. 
4  /.-,;./    ;-.  tm. 


TEMPORARY  JUDICIAL  COMMISSIONS 


237 


was  reduced  to  thirteen.  After  this,  upon  motion  from  the  delegates  of 
South  Carolina,  the  thirteen  names  were  put  in  a  Imx  and  the  following  nine 
were  drawn  out  in  the  presence  of  Congress:  Alexander  Contee  Hanson. 
James  Machson,  Robert  GoicUIxirouRh.  James  Duane.  Philemon  Dickinson, 
John  Dickinson,  Thomas  McKean.  Egl)ert  Benson  and  William  Pynchon.' 
The  next  day  the  delegates  of  (Jeorgia  moved  that  the  court  be  held  at  the 
City  of  New  York  on  the  first  Monday  of  May,  17.S7.  The  delegates  from 
South  Carolina  proi)osed  to  substitute  for  this  date  the  third  Monday  of 
.\ov>ember  of  the  current  year.  The  amendment  failed,  and  the  court  Was 
therefore  directed  to  meet  as  proposed  by  the  State  of  Georgia.* 

The  membership. of  this  court  was  certainly  such  as  to  satisfy  the  most 
exacting  requirements.  It  contained,  as  did  the  court  in  the  case'of  Massa- 
cliiisctts  V.  Nnv  York,  the  name  of  a  future  president,  and  the  gentleman 
who  can  in  all  probability  be  considered  as  the  father  of  the  Constitution, 
James  Madison;  John  Dickinson,  a  member  of  the  Continental  Congress,  who 
had  refused  to  sign  the  Declaration  of  Independence  because  he  believed  it 
was  inexpedient  at  the  time  and  under  the  circumstances,  but  who  enlisted  and 
served  as  a  private  in  the  army  after  the  Declaration  had  been  proclaimed, 
who  drafted  the  Articles  of  Confederation  under  which  the  proceeding  was 
to  take  place,  and  who  later  was  an  influential  member  of  the  Constitutional 
Convention:  Thomas  McKean,  Chief  Justice  of  the  Supreme  Court  of  Penn- 
sylvania and  Governor  of  that  State:  Egbert  Benson,  Attorney  General  of 
New  York,  later  a  Justice  of  the  Supreme  Court  of  the  State  and  a  judge  of 
the  Circuit  Court  of  the  United  States.  The  court,  however,  seems  not 
to  have  met,  and  the  diflference  was  settled  by  compact  between  the  States 
dated  February  24,  1787,  as  appears  from  the  first  and  second  articles  thereof, 
to  be  found  in  the  case  of  South  Carolina  v.  Gcorijia,  recorded  in  93  United 
States  Reports,  pp.  5-6. 

These  are,  so  far  as  known,  the  only  cases  of  dispute  between  the  States 
which  were  submitted,  or  prepared  for  submissien,  to  temporary  tribunals 
appointed  according  to  the  provisions  of  the  ninth  of  the  .Articles  of  Confedera- 
tion. In  the  first  case,  that  of  Pcnnsykania  v.  Connecticut,  the  court  was  ap- 
pointed by  consent  of  the  parties  and  rendered  judgment.  In  the  second, 
that  of  .\fassacliusctts  v.  New  i'ork,  a  court  was  indeed  appointed  by  consent 
of  the  parties,  in  accordance  with  the  provisions  of  the  ninth  article,  but  the 
controversy  was  settled  out  of  court.  In  the  case  of  South  Carolina  v.  Georgia 
a  court  was  also  appointed  tinder  the  ninil'  article,  but  as  the  agents  were  unable 
to  agree  ujjon  the  commissioners  or  judges,  they  were  chosen  by  the  method 

'  I  hid.,  p.  6%. 
2  Il'id.,  p.  697. 


! 


.1 


SicntficuKC 
o<  the 
Temporary 
Tribunal* 


1^* 


Other 

Appeal*  to 
Cuiigrets 


1  ? 


Pispute 
Involving 
the  Existence 
of  a  State 


238  THE   UNITED  STATES:  A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

of  the  ninth  article,  devised  to  enable  a  court  to  be  constituted  when  the  States 
in  controversy  were  unable  to  agree  upon  its  composition.  We  thus  have,  in 
these  three  cases,  a  demonstration  of  the  possibilities  of  peaceable  settlement : 
first,  where  the  parties  agree  upon  the  court,  which  actually  renders  a  decision ; 
second,  where  the  parties,  knowing  that  the  controversy  is  to  be  settled  by 
the  court,  reach  an  agreement,  which  appears  to  have  been  impossible  without 
the  existence  of  the  court;  and  third,  where  the  court  has  been  constituted 
without  the  agreement  of  the  parties,  according  to  a  method  known  in  advance 
and,  as  in  the  previous  case,  an  agreement  is  reached  because  of  the  existence 
of  the  tribunal  and  without  recourse  to  its  judgment. 

In  three  other  cases  the  action  of  Congress  was  invoked,  namely,  the 
controversy  between  New  Hampshire  and  Vermont,  New  York  and  Vermont, 
and  Massachusetts  and  Vermont,'  arising  out  of  the  so-called  New  Hampshire 
grants ;  the  case  of  Pennsylvania  v.  Virginia  *  and  the  case  of  Nnv  Jersey  v. 
Vinjinia.^  In  no  one  of  these  was  a  court  appointed,  but  as  they  are  inter- 
esting because  of  the  reference  to  Congress,  they  will  be  briefly  mentioned, 
in  order  that  all  known  cases  under  the  ninth  article  may  Ix;  noted. 

The  case  of  the  New  Hampshire  grants  is  very  complicated,  and  it  is  re- 
ferred to  largely  as  showing  the  solicitude  of  the  Congress,  as  the  successor 
of  the  King  in  Council,  that  a  dispute  involving  three  States  and  a  claimant 
to  statehood  should  be  peaceably  settled.  It  is  also  referred  to,  as  showing 
the  impracticability  if  not  futility  of  supposing  that  a  community  would  submit 
to  the  arbitrament  of  a  temporary  tribunal  the  question  of  its  existence  or 
right  to  exist,  for  the  statehood  of  Vermont  hung  in  the  balance. 

New  York  claimed  to  the  Connecticut  River.  In  1750.  as  recorded  by 
the  historian  Bancroft,  "  New  York  carried  its  claims  to  the  Connecticut 
river;  France,  which  had  command  of  Lake  Champlain,  extended  her  preten- 
sions to  the  crest  of  the  Green  Mountains :  while  Wentworth,  the  only  royal 
governor  in  New  England,  began  to  convey  the  soil  l)etween  the  Connecticut 
and  Lake  Champlain  by  grants  under  the  seal  of  New  Hampshire."  *  These 
grants  are  therefore  known  as  the  New  Hampshire  grants.  In  1764  the 
King  in  Council,  according  to  the  same  historian,  "  dismembered  New  Hamp- 
shire, and  annexed  to  New  York  the  country  north  of  Massachusetts  and 
west  of  Connecticut  river.  The  decision  was  declaratory  of  the  boundary; 
and  it  was  therefore  held  by  the  royalists  that  the  grants  made  under  the 
sanction  of  the  royal  governor  of  New  Ham])-ihire  were  annulled."  '  How- 
ever, the  towns  and  villages  in  dispute  were  settled  largely  by  New  Englanders 

'  131  U.  S..  AfPendix,  p.  1. 

2  Ibid.,  p.  liii 

• /''id.,  p.  Iviii.  ,r  1    ••         «i 

*  George  Bancroft,  History  of  the  United  Stales  of  America,  1883  ed..  Vol.  ii,  p.  361. 

» Hid.,  Vv!.  iii,  p.  87. 


TEMPORARY  JUDICIAL  COMMISSIONS 


239 


under  the  New  Hampshire  grants.  In  1775,  again  to  quote  Bancroft,  "  the 
court  of  common  pleas  was  to  be  opened  by  the  royal  judges  in  what  was  called 
the  New  York  county  of  Cumberland,  at  Westminster,  in  the  New  Hampshire 
Grants,  on  the  eastern  side  of  the  Green  Mountains.  To  prevent  this  asser- 
tion of  the  jurisdiction  of  New  York  and  of  the  authority  of  the  king,  a  body 
of  young  men  from  the  neighboring  farms  on  the  thirteenth  of  March  took 
possession  of  the  court-house.  The  n.yal  sheriff,  who,  against  the  wish  of 
the  judges,  had  raise.l  sixty  men  armed  with  guns  and  bludgeons,  demanded 
possession  of  the  building;  and,  after  reading  the  riot  act  and  refusing  to 
concede  terms,  e  in  the  night  ordered  his  party  to  fire.  .  .  .  The  act  closed 
the  supremacy  oi  the  king  and  of  New  York  to  the  east  of  Lake  Champlain."  * 

The  settlers  of  the  Green  Mountains  organized  themselves  as  a  State,  under 
the  name  of  Vermont,  and  in  convention  on  the  15th  day  of  January.  1777,* 
declared  their  independence  of  New  York.  In  the  following  July  a  convention 
assembled  at  Windsor,  adopted  a  constitution,  which  was  accepted  by  the 
legislature  and  declared  to  Ije  a  part  of  the  laws  of  the  State.' 

It  is  clear  from  this  brief  statement  that  Massachusetts  was  not  vitally 
interested,  as  the  land  lay  to  the  north  of  its  territory  under  the  charter.  It 
is  clear  that  New  York  was  vitally  interested,  as,  if  its  contention  were 
allowed,  it  would  receive  a  very  considerable  extension  of  desirable  territory. 
It  is  also  evident  that  New  Hampshire  was  even  more  interested  because,  if 
the  contention  of  New  York  were  granted,  or  if  the  settlers  in  Vermont  had 
their  way.  the  authorities  of  New  Hampshire  would  lose  title  to  a  territory 
which  they  had  possessed  and  which  they  naturally  sought  to  retain.  Finally, 
the  settlers  of  \'ermont  were  or  were  not  a  State,  according  as  the  case  turned 
out. 

A  secret  agreement  between  New  York  and  New  Hampshire  to  divide 
the  territor>-  in  dispute  did  not  result  as  anticipated  by  the  two  conspirators, 
owing  to  the  resistance  and  the  detennination  of  "  the  Green  Mountain  boys," 
who  showed  their  mettle  by  the  defeat  of  the  Hessians  l^elonging  to  Burgoyne's 
army  at  the  battle  of  Bennington.  Unable  to  reach  a  settlement  by  direct 
negotiation,  or  even  by  secret  agreement  providing  for  dismemberment.  Xev/ 
York  bethought  itself  of  the  Congress,  doubtless  hoping  that  from  the  suc- 
cessor of  the  King  in  Council  it  would  obtain  a  confirmation  of  title  to  the 
territory  it  had  acquired  by  the  decision  of  the  King  in  Council  in  1764.* 
On  May  21,  1779.  the  day  on  which  the  petition  from  the  merchants  and 
citizens  of  Philadelphia  had  been  read  to  provide  a  court  of  appeals  in  prize 
cases,  the  delegates  of  New  York  in  the  Congress  moved  a  series  of  resolutions 


> //.id.,  Vol.  iv.  p.  142. 

« Ibid.,  Vol.  V,  p.  157. 

*lbid.,  p.  161. 

*Acts  of  the  Priiy  Council,  Colonial  Series,  Vol.  iv.  pp.  673-4. 


< 


I 


'i 


ii 


*«' 


240  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  OUCANIZATION 

relating  to  the  controversy.'  On  September  24th  of  that  year  it  was  "  Re- 
solved,  unanmoiisly.  That  it  be,  and  hereby  is.  most  earnestly  recommended  to 
the  states  of  New  Hampshire.  Massachusetts  Ray.  and  New  York,  forthwith 
to  pass  laws  expressly  authorizing  Congress  to  hear  and  determine  all  differ- 
ences between  them  relative  to  their  respective  lioundaries.  in  the  mo<le  pre- 
scril)ed  by  the  articles  of  confederation,  so  that  Congress  may  pnjceed  thereon 
by  the  first  day  of  February  next  at  the  farthest :  and  further,  that  the  said 
states  of  New  Hampshire.  Massachusetts  Bay.  and  New  York,  do.  by  express 
laws  for  the  purpose,  refer  to  the  decision  of  Congress  all  differences  or 
disputes  relative  to  jurisdiction,  which  they  may  respectively  have  with  the 
people  of  the  district  aforesaid,  so  that  Congress  may  proceed  thereon  on  the 
first  day  of  February  next."  *  It  was  necessary  for  Congress  to  proffer  such 
a  re<iuest.  inasmuch  as  it  did  not  possess  the  authority  to  form  a  committee 
by  "  striking."  at  the  request  of  the  State  of  New  York.  l)ecause  the  Articles 
of  Confederatiiin  were  not  then  the  law  of  the  land.  H  they  had  l)een  in 
effect,  the  situation  would  have  l)een  wholly  different. 

On  Octolier  2.  177^,  the  States  were  again  urged  "  to  authorize  Congress 
to  proceed  to  hear  and  determine  all  disputes  subsisting  Iwtween  the  grantees 
of  the  several  states  aforesaid,  with  one  another,  or  with  either  of  the  said 
states,  respecting  title  to  lands  lying  in  the  said  district,  to  he  heard  and  deter- 
mined by  '  commissioners  or  judges.'  to  be  appointed  in  the  mode  prescril)ed 
bv  the  ninth  article."^  Xew  York,  having  everything  to  gain,  and  New 
liampshire.  hoping  to  regain  what  would  l)e  lost  either  to  New  York  or  the 
people  of  X'ermont  if  its  contention  were  not  sustained,  enacted  the  necessary 
legislation.*  Massachusetts,  as  alx)ve  statetl.  had  no  real  interest  in  the  ques- 
tion, but  the  people  of  \crmont  had  to  be  reckoned  with,  and  having  organized 
themselves  as  a  State,  they  were  unwilling  to  have  what  they  considered  their 
lands  voted  away  by  acts  of  the  legislatures  of  the  claimant  States,  or  by  act 
of  Congress.  Their  opposition  undoubtedly  prevented  the  app<itntment  of  a 
court,  for  none  was  constituted,  and  although,  in  the  month  of  Septenil)er. 
1780.  agents  of  Xew  ^'ork  laid  their  case  before  Congress,"  claiming  that  from 
1764  to  1777  the  people  of  the  territory  in  dispute  were  represented  in  the 
legislature  of  Xew  York  and  submitted  to  its  authority,  although  the  agents 
of  Xew  Hampshire,  in  the  same  month.  i)re>ented  its  case  to  the  ConsTre-;-;.'' 
maintaining  that  the  tract  lay  within  the  limits  of  Xew  Hampshire  and  that 

>  J.'urnuls  of  llu-  (\<nlin.-i'lal  Coii-iriSs.  V"!.  ^iv,  pp.  631-3. 
-/'■„/.,  V..1.  XV.  pp-  I(Wk7. 

3   I  hill.,    p,     1133.  ,.  .  .    ^  X'  <A      T         t     I' 

«.\rt  of  X.w  York.  Oct.  21.  IT"'      Pat'.-rs  of  Ihc  C o'lvirulal  Coniiri'st.  Nn.  40,  I.  folio 
269;  .\ct  ..f  \o»    llamp^liire.   \n     >"!«r.   \pi  fnlio  ?63. 

" ./  itirnnf,?,  V.>l.  sviii.  pp   841,  (^4.1      N»m..._.  nf  September  19  and  20,  1780. 
'Ibid.,  p.  868.     Session  of  Septcniliir  27.  1780. 


TKMPORARV   JUDICIAL  COMMISSIONS 


241 


--• 


the  people  inhabiting  it  had  no  right  to  a  separate  and  independent  existence, 
the  Congress  did  not,  txcausc  it  could  not.  take  action.  The  case  had  ceased, 
by  the  action  of  the  settlers  of  Vermont,  to  be  one  of  law.  it  had  Income  one 
of  force;  it  was  no  longer  a  matter  for  the  courts;  it  had  become  a  political 
instead  of  a  judicial  question. 

The  only  solution  compatible  with  peaceful  settlement  was  apparently 
the  recognition  of  the  independent  statehood  of  the  settlers.  This  Massachu- 
setts and  New  Hampshire  did  in  1781  and  \ew  York  in  17'J0.  and  the  contro- 
versy  was  settled  in  the  end.  as  it  should  have  been  and  was  foredoomed  to 
be  settled  in  the  l«Kinning.  by  the  admission  of  Vermont  as  a  State  of  the 
American  Union  on  February  18.  1791. «  While  the  reasons  for  the  failure 
of  the  Congress  to  appoint  a  court  can  be  deduced  from  the  mere  statement 
of  the  facts,  we  nevertheless  have  them  stated  bv  a  contemiwrary.  whose 
word  carries  great  weight.  Thus.  Alexander  Hamilton  wrote  in  The 
Federalist: 

Those  who  had  an  opportunity  of  seeing  the  inside  of  the  transactions, 
which  attended  the  progress  of  the  controversy  bttwcen  this  state  [Xew 
^ork  and  the  district  of  \'ermont.  can  vomh  the  opposition  we  exi)erienccd 
as  well  from  states  not  intorcsfcd,  as  from  tliosc  wliidi  were  interested  in  tht' 
claim :  and  can  attest  the  danger  to  which  the  peace  of  the  confederacy  mielit 
have  lH>en  exposed,  had  this  state  attempted  to  assert  its  rights  hv  force 
Aew-jcrsy  and  Rode-Island.  upon  all  occasions,  discovered  a  warm  zeii 
tor  the  independence  of  Vermont :  and  Marvland.  until  alarmed  bv  the  ap- 
pearance of  a  connection  between  Canada  and  that  place,  entered  deei/lv 
into  the  same  views.'  '  ■ 

On  December  27,  17/0.  the  following  entry  in  the  Jourmls  of  Congress 
shows  that  a  dispute  had  arisen  between  Pennsylvania  and  Virginia,  anil  the 
action  which  the  Congress,  as  the  apparent  successor  of  the  King  in  Council  ''''"'''' 
thought  should  be  taken ; 

Whereas  it  appears  to  Congress,  from  the  representation  of  the  delegates 
ot  the  -State  of  Pensylvania,  that  disputes  have  arisen  between  the  states  of 
lens>Ivan)a  and  \  irgnna,  relative  to  the  extent  of  their  bnindarics,  which 
may  probaMy  he  productive  of  serious  evils  to  both  states,  and  tend  to  lessen 
their  exertions  in  the  common  cause:  therefore. 

Resolved.  That  it  be  recommended  to  the  contending  parties  not  to  grant 
any  part  of  the  disputed  land,  or  to  disturb  the  i>ossession  of  any  iK-rsons 
iving  thereon,  .ind  to  avoid  every  appearance  of  force  until  the  dispute  can 
be  amicably  settle.l  by  both  states,  or  brouRht  to  a  just  decision  by  the  inter- 
vention of  Con,irress:  that  possessions  forcibly  taken  be  restored  to  tlie 
original  possessors,  and  things  placed  in  the  situation  in  whidi  they  were  at 
the  commencement  of  the  present  war.  without  prejudice  to  the  claims  of 
either  party.^ 

« 1  Stat..  191. 

'  ■'  /!!■  Ft'drritlht.  1S03  c(!..  Vol.  i,  pp.  36-7.     Paper  vii 

*  Journals  of  the  Continental  Congress,  Vol.  xv,  p.  1411. 


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Appoint 


242         THE  t'NITEO  •TATtS:   A   «TIDY   IS    INTERNATIONAL  ORGANIZATION 

The  Congress  was  naturally  desirous,  as  appears  from  the  resolution,  that  the 
dispute  be  amicably  settled  by  »>oth  States  or  brought  to  a  just  decision  by 
the  intervention  of  Congress,  and,  in  order  to  render  this  possible,  recom- 
mended the  maintenance  of  the  stalus  quo  pending  settlement.  The  Sutes  in 
controversy.  intereste<l  in  the  commuii  cause,  seem  to  have  acicd  in  accordance 
with  the  desires  of  Congress,  although  it  docs  not  appear  how  an<l  to  what 
extent  its  advice  was  followed,  as  there  is  no  further  reference  to  the  case  in 
the  records  of  tl  at  body.  An  agreement  for  settlement  was  made  ii  Ualti- 
more  on  August  31.  1779.>  in  pursuance  of  which  commissioners  were  ap- 
pointed  on  the  part  of  Pennsylvania  and  Virginia.  In  consequence  of  this 
action  on  the  part  of  the  States.  "  the  line  commonly  called  Mason  and  Dixon's 
line  '•  was  "  extended  due  west  five  degrees  of  longitude."  "  from  the  river 
Delaware  for  the  southern  Ix^undary  of  Pennsylvania,"  and  "  a  meridian  line 
drawn  from  the  western  extremity  thereof  to  the  northern  :  .le  of  the  State  " 
l)ecame  the  western  boundary.  On  the  23d  of  August.  1784.  the  commission 
.-eported  that  the  Ohio  River  was  reached.* 

The  cession  to  the  United  States,  dated  March  1.  1784.'  by  Virginia  of  its 
claims  to  all  territor>'  from  the  m)rthem  bank  of  the  Ohio  lessened  the  interest 
which  the  Old  Dominion,  as  \irginia  is  affectionately  called  by  its  citizens, 
might  otherwise  have  had.  not  only  in  the  prolongation  of  the  line  but  in  the 
prolongation  of  the  controversy. 

The  last  case  coming  Iwfore  the  Congress  in  which  a  request  was  made, 
and  the  only  one  in  which  the  Congress  refused  the  petition  to  appoint  a  court 
in  accordance  with  the  ninth  article,  was  a  controversy  Iwtween  New  Jersey 
and  \'irginia.*  The  dispute  was  ended,  if  indeed  it  can  properly  be  said 
to  have  l)eKun,  by  the  cession  of  \'irginia*s  claims  to  the  Northwest  Territory 
on  the  1st  of  March,  1784.  The  facts  of  the  case,  however,  are  interesting 
as  showing  the  n'agnitude  of  the  cases  referred  to  the  Congress,  l)ecause  the 
territor^  in  question  was  a  large  tract  of  land  called  Indiana,  located  l«tween 
the  Little  Kennawa.  the  Moncn^rahela  and  the  sonthern  l>nmdary  of  Pennsyl- 
vania A  memorial  was  presented  to  Congress  on  September  14.  1779."  by 
one  r^orfie  Morgan,  as  agent  for  the  proprietors  of  this  tract,  claiming  that 
his  principals  had  acquired  the  tract  of  land  by  purchase  from  the  Six  Nations 
and  uther  Indians,  that  after  the  purchase  of  the  lands  they  had  been  with- 
drawn from  the  jurisdiction  of  X'irginia  by  the  King  in  Council,  but  that  Vir- 
ginia having  resumed  jurisdiction  thereof,  was  alK)ut  to  order  sales  to  lie 
made  within  the  district  in  question.     The  memorial  prayed  that,  as  m  the 

'  1,31  U.  S..  Affendix.  p,  liii. 

'  I  hid.,  p.  liv.  ,,  ,  lie  < 

^  nancroft.  IlUlon;  "/  ('";  '>'"•''  '^l'""-  ^ol-  vi,  pp.  115-6. 

^Journals  of  the  Conthwutal  Congress,  Vol  xv.  pp.  1063-4. 


TBMPORABY  JUDICIAL  COMMISSIONS 


243 


case  of  Pennsyhvnia  v.  Virginia,  the  sales  might  be  restrained  and  the  status 
quo  preserved  until  the  matter  could  I*  hear  1  by  Congress.  Leaving  out 
various  petitions  to  the  CuiiRress,  it  is  sufficient  for  present  purposes  to  say  that, 
a  petition  of  Colonel  George  Morgan,  as  agent  for  the  State  of  New  Jersey, 
was  presented  to,  read  and  con-ulercd  by  Congress  while  that  Iwdy  had  J)cfore 
it,  Imt  before  it  had  ado|)te(l  the  territorial  cession  of  X'irginia.  whose  accept- 
ance by  the  (  ongress  on  twhalf  of  the  United  States  would  end  the  controversy 
in  so  far  a>  Virginia  was  concerned.  The  petition  is  interesting  as  it  was  an 
attemjit  on  the  part  of  a  State  to  enable  its  citizens  to  present  a  claim  to  the 
Congress  and  to  have  a  court  appointed  for  the  determination  of  land  not 
claimed  as  In-longing  to  the  State  of  New  Jersey  as  such,  but  to  land  ac(|uired 
by  some  of  its  citizens  whose  cause  New  Jersey  espoused  by  virtue  of  their 
citizenship.  In  view,  therefore,  of  these  facts  and  of  this  action  of  the  State 
of  N'ew  Jersey,  which  is  capable  of  a  larger  application,  the  material  portion 
of  the  petition  is  here  set  forth : 

To  the  United  .'States  of  America,  in  Congress  assembled. 
The  pt-fition  of  ("olone!  George  Morgnn,  agent  for  the  State  of  N'ew 
Jersey  resp<'ct fully  sheweth;  that  a  controversy  now  subsists  between  the 
said  State  and  the  Commonwealth  of  N'irginia  res|iecting  a  tract  of  land 
called  Indiana,  lying  cii  the  river  (Miio,  and  being  within  the  I'nitid  States; 
Tliat  your  petitioner  and  others,  owners  of  the  said  tract  of  land,  labor  under 
gr  vances  from  the  said  Commonwealth  of  \irginia,  whose  legislature  has 
set  up  pretensions  thereto:  That  in  consequence  of  instructions  from  the 
legislature  of  N'ew  Jersey  to  their  delegates  in  Congress,  anno  1781,  and  the 
IK-titions  of  Indiana  proprietors,  anno  1779,  17.'0  and  1781,  a  hearing  was 
obtained  before  a  very  respectable  contniittee  of  Congress,  who,  after  a  full 
and  p-itient  examination  of  the  matter,  did  unanimously  report  .  .  .  that  the 
purchase  of  the  Indiana  Company  was  niade  bciui  fidi'  for  a  valuable  con- 
sideration, according  to  the  then  usage  and  custom  of  purchasing  lands  from 
the  Indians,  with  the  knowledge,  consent  and  approbation  of  the  Ctown 
of  Great  Britain  and  the  then  governments  of  New  York  and  N'irginia: 
That  notwithstanding  this  report,  the  State  of  N'irginia  still  continues  to  claim 
the  la.ids  in  question,  to  the  great  injury  of  vour  petitioner  and  others:  Th.-it 
your  petitioner,  on  liehalf  of  himself  and  the  other  proprietors  of  the  said 
tract  ot  nd,  applied  to  the  said  State  of  New  Jersey,  of  which  some  of  them 
are  citizens,  for  its  protection  :  That  the  legislature  of  the  said  State  there- 
upon nominated  and  apjwinted  your  petitioner  the  lawful  agent  of  the  said 
State,  for  the  express  purpose  of  preparing  and  presenting  to  Congress  a 
memorial  or  petition  on  the  part  and  behalf  of  the  said  State.  repre>enting 
he  matter  of  the  complaint  aforesaid,  to  pray  for  a  hearing,  and  to  prosecute 
ihe  said  hearing  to  issue,  in  the  mode  pointed  out  by  the  .Articles  of  Con- 
federation: That  the  said  legislature  ordered  that  a  commission  should  be 
issued  by  the  executive  authority  of  the  said  State,  to  your  petitioner,  for 
the  purposes  aforesaid :  That  a  commission  was  accordingly  issued  to  your 
petitioner  by  the  executive  authority  of  the  said  State,  a  copy  whereof 
aceo!  panics  this  petition.  .  .  .  Wherefore  your  petitioner,  as  lawful  agent 
of  the  said  State  of  .New  Jersey,  prays  for  a  hearing  in  the  premises,  agree- 


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244       THE  t'NiTGU  states:  a  stiiiv  in  inikknaiiunai,  ()R(;anuati()n 

ably  to  the  9th  Article  of  Confederation  and  Perpetual  I'niun  between  the 
Inited  States  of  America' 

A  inotion  to  ominiit  the  petition  and  also  a  motion  to  consider  and  prepare 
an  answer  to  it  were  lost,  after  which  the  Congress  accepted  the  deed  of  cession 
from  Virginia,  as  it  had  previously,  in  1781,  accepted  a  cession  of  the  claiin> 
that  New  York  hail  to  the  territory  northwest  of  the  Ohio.  It  was  therefnrc 
unnecessary  for  the  Congress  to  take  further  action  on  this  petition  in  the  form 
in  which  it  was  presented,  as  the  claim  of  Messrs.  Morgan  and  his  principals 
was  thereafter  against  the  I'nited  States,  not  Virginia. 

Doubtless  the  court  nf  ap|)eals  in  cases  of  capture  inclined  the  hearts  r, 
the  understaniling  of  the  g<x)d  people  of  the  Confederation  to  the  establish'     m 
of  a  judiciary  which  c<»uld  pass  u|M)n  ipiestions  in  which  the  States  had  as'    .'     ! 
jurisdiction,  and  thus  create  uniformity  where  diversity  would  othcrv  ;  i 

existed  and  prejudice  the  Cunfedoration  as  such  in  its  relations  wi;  r. 

nations.     Hut  prize  cases  had  lieen  for  centuries  submitted  to  pri(       ., 
tribunals  or  comiuissioiis.     The  noxelty  of  the  proce<iure  was  t         i.-'ii    > 
one  court  of  appeal  from  thirteen  States,  a  great  incentive  not  <    ',.   t     t., 
establishment  of  a  Supreme  Court  but  also  to  the  establishment  of  an  ii  ii  r    i 
tional  court  of  prize.     Controversies  lietween  States  claiming  to  Iw  soverei,ii. 
free  and  independent,  and  in  their  instrument  of  confederation  stating  ar  . 
having  their  sovereignty,    freedom  and   independence   recognized,   had   iint 
hitherto  l)een  submitted  as  a  matter  of  course  to  courts,  tribunals,  and  com- 
missions.    The  statesmen  of  the  .American  Revolution  had  put  new  wine  into 
old  lK)ttlcs.     They  had  hit  upon  a  procedure  as  wise  as  it  was  novel  in  devising 
a  method  of  settlin?  international  disputes  without  a  resort  to  force.  Iwtwcen 
the  brcikdown  of  diplomacy  and  the  outbreak  of  war;  and  in  the  short  space 
ot  ten  years  thev  had  completed  the  long  road  between  self-redress  and  arbi- 
tration to  judicial  settlement  bv  the  establishment  of  the  permanent  interna- 
tional judiciary  known  as  the  Supreme  Court  of  the  United  States. 

«  131   U.   S.,  Aftcndix,  p.  Ix. 


XII 


I 


CREATION  OF  THE  SUPREME  COURT 

The  Americant  form  but  one  people  in  relation  to  their  federal  (jovernmenl ,  hut  in 
the  boiom  of  thii  ptopU-  'liven  piilitical  IkxIicj  havi-  been  allowol  to  »iit»i»t.  which  are 
dependent  on  the  nalioial  KoNtrnmenl  in  a  frw  poinln.  miil  inde|iendriit  m  all  'hi-  reJt — 
which  havf  all  a  distuiit  oriKin,  maxirni  peculiar  lo  tlicm»rlvei,  and  special  meani  'of 
Mrrying  on  their  allairt.  To  intrust  the  execution  of  the  laws  of  the  Union  to  inliunaU 
iiiftttutrd  hy  these  political  liodies,  would  lie  to  allow  foreign  iudgc»  to  prciide  over  .he 
nation.  N'av.  more:  not  only  i«  each  State  fo'eiiiii  to  the  Lni.ni  at  larm-,  but  it  is  a 
perpetual  adversary,  since  whatever  authoiity  the  Union  loses  turns  to  the  advantage  of 
the  i>tate«  Thus,  to  enforce  the  laws  of  the  I'nion  by  mean*  of  the  State  trih  ,nals  would 
be  to  allow  not  only  foreign,  but  partial,  judges  to  preside  over  the  nation. 

Hut  the  numb«r,  still  more  than  the  mere  character,  of  the  State  tribunal*,  made  them 
unfit  for  the  service  of  the  nation.  When  the  Kede-al  Constitufon  was  formed  there- 
were  already  thirteen  courts  of  justice  in  the  United  States,  which  <lcciiled  causes  without 
appeal.  I  hat  numlirr  is  now  increased  to  twenty-four  (forty-eight).  To  sup|M>se  llial  a 
state  can  subsist,  when  its  fundamental  laws  are  siilnected  to  four-and-twenly  different 
interpretatKir.s  at  the  same  time,  is  to  advance  a  propotition  alike  contrary  lo  rcanoii  and 
to  experience  (.(/erij  </<-  ToojunilU.  Pe  la  IKmoiralie  ,n  AnUrtuue.  .»  vols.,  iStt. 
Trantlalwn  of  Ironcit  Hotwn,  Vol.  1,  tS6i,  pp.  ijj-ij8.) 

Section  1.  The  judicial  Power  of  the  United  States,  shall  he  vested  in  one  s.ipreme 
Court,  and  in  such  inferior  Courts  as  the  C<mgres»  may  from  time  to  time  ordain  and 
establish.  The  Judges,  Injlb  of  the  supreme  and  inferior  Courts,  shall  hold  their  <  )rt\ce» 
during  good  fJehaviour,  and  shall,  at  slated  Times,  receive  for  their  Services,  a  Comm-n- 
satio.',  which  shall  not  he  diminished  during  their  Continuance  in  Office 

Section  2  The  judicial  Power  shall  extend  to  all  Cases,  in  Uw  and  K.iuitv.  arising 
under  this  Constitution,  the  laws  of  the  I'nited  Slates,  and  TreHies  made,  o-  which  shall 
be  made,  unilcr  their  .\uthority ;— to  all  Cases  affectiiiK  .\mliassador<.  .itlur  pnl.lic  Min- 
isters and  Consuls:— to  all  Cases  of  admiralty  and  maritime  Jurisdiction :— to  Contro- 
versies to  which  the  United  States  shall  be  a  Party  :-lo  Contr.ivcr^ics  between  two  or 
more  .States  :—b«-iwecn  a  Stale  and  Citizens  of  another  Stale  :-htiwcen  Citi/en.*  of  dif- 
ferent States,— between  Cituens  of  the  same  State  claiming  I  jnds  under  Crams  of  different 
States,  and  between  a  State,  or  the  Citizens  thereof,  and  'orcign  States.  Citizens  or 
subjects. 

In  all  Cases  affecting  .Ambassadors,  other  public  Ministers  and  Consuls,  and  those  in 
which  a  State  shall  be  Party,  the  supreme  C<uirt  shall  have  original  Inrisdiction.  In  all 
the  other  Cases  before  mentioned,  the  supreme  Court  shall  have  appellate  Jurisdiction, 
both  as  to  U»w  and  Fact,  with  such  Kxccptions,  and  under  such  Regulations  as  the 
Congress  shall  make.   .    .    .    {(.  onslitulion  of  the  Vnitfd  Stales,  .tnicli-  III.) 

This  Constitution  defines  the  extent  of  the  powers  of  the  general  government  If  the 
general  legislature  should  at  any  time  overleap  their  liiniLs,  llu-  judicial  deiiartment  is  a 
coMstitutiorial  check.  If  the  United  States  go  Uy.md  their  powers,  if  thev  make  a  law 
w.  h  the  Constitution  does  not  authorize,  it  is  void;  and  the  ju.licial  powe'r,  llu-  nation.il 
)i  ,  ?'  who.  to  secure  their  impartiality,  are  to  be  made  independent,  will  declare  it  to 
l>e  id.  On  the  other  hand,  if  the  states  go  bcvond  their  limits,  if  tlpv  make  a  law 
wnii  .  i»  a  usurpation  upon  the  general  government,  the  law  is  void:  ind' upright,  indi 
pendent  judges  will  declare  it  to  be  so.  Still,  however,  if  the  '.•nitcd  States  and  i'.  • 
individual  states  will  (|uarrel.  if  Ihey  want  to  tifht.  thev  mav  d..  it.  and  no  frame  • 
government  can  possibly  prevent  it  It  is  sulTicient  for  this  Constitution,  ih.it  so  f 
irom  laying  them  under  a  necessity  of  contending,  it  provides  every  reasi.pal.lc  clu  .» 
?-';?'"."  -^L  ',?{."'"■  '^"■"«'"''"'  '«  """  Conn,-  lirut  Conjvniion.  Januar-i  7,  ;:W.  Jonatha,i 
i^lliot.  I  He  l>f  hales  m  the  Sn-eral  Stale  Cmvcnlions  ,m  the  .Adoption  of  the  Federal 
Conslttutxon,  yol.  II.  iSfd;  second  edition,  I'nl.  II.  'Sui.  p.  i>)6.) 

»45 


ill 


I 


-Li 


i: 


■#W* 


246  THE  ONITED  STATES:  A  STUDY  IN   INTERNATION.'.f.  ORGANIZATION 

Th«t  •  federal  jyttem  again  can  flourish  only  among  commuiiitit*  imbued  with  a  legal 
ipirit  and  trained  to  'everence  the  law  is  as  certain  as  can  be  any  conclusion  of  political 
speculation.  Federalism  substitutes  litigation  for  legislation,  and  none  but  a  law-leanng 
people  will  be  inclined  to  regard  the  decision  of  a  suit  as  equivalent  to  the  enactment  ol 
a  law.  The  .:ain  reason  why  the  United  States  has  earned  out  the  federal  system  with 
unequalled  success  is  that  the  people  of  the  Union  are  more  thoroughly  imbued  wuh  let^l 
ideas  than  any  other  existing  nation.  Constitutional  questions  arising  out  of  either  ttir 
constitutions  of  the  separate  States  or  the  articles  of  the  federal  Constitution  are  of  daily 
occurrence  and  constantly  occupy  the  Courts.  Hence  the  citizens  become  a  people  of  con- 
stitutionalists, and  matters  which  excite  the  strongest  popular  feeling,  as,  for  instance,  the 
right  of  Chinese  to  settle  in  the  country,  are  determined  by  the  judicial  Bench,  and  the 
decision  ot  the  Bench  is  acquiesced  in  by  the  people.  This  acquiescence  or  submission 
is  due  to  the  Americans  inheriting  the  legal  notions  of  the  common  law.  i.  e.  of  the  most 
legal  system  of  law"  (if  the  expression  may  be  allowed)  in  the  world  Tocqueville  long 
ago  remarked  that  the  Swiss  fell  far  short  of  the  Americans  in  reverence  for  law  and 
justice  The  events  of  the  last  sixty  years  suggest  that  he  perhaps  underrated  Swiss 
submission  to  law.  But  the  law  to  which  Switzerland  is  accustomed  recognises  wide  dis- 
cretionary power  on  the  part  of  the  executive,  and  has  never  fully  severed  the  functions 
of  the  judge  from  those  of  the  government.  {Albert  yenn  Dicey,  iHlroductton  to  Ike  Study 
of  the  Law  of  the  Constitution,  iUSs,  8lh  edition,  1915.  PP-  '75-'76.) 

We  live  under  a  peculiar  Government,  due  to  its  dual  character  and  limited  power. 
We  have  to  determine  in  this  country  not  only  what  we  ought  to  do,  but  what  we  can 
do  because  we  have  a  Government  limited  both  as  to  which  sovereignty  shall  exercise 
the  power  and  limited  also  as  to  what  matters  can  be  dealt  with  at  all.  The  one  important 
original  idea  contained  in  the  Constitution  of  the  United  States  is  the  supremacy  that  is 
given  to  the  judiciary.  The  thing  that  makes  our  Constitution  unique  from  every  one 
in  the  world  is  the  fact  that  the  Supreme  Court  of  the  United  States  is  given  power  to 
say  if  the  other  branches  of  the  Government  have  exceeded  their  power;  has  the  right 
to  declare  null  and  void  an  act  of  the  Legislature  of  the  National  Government;  has  the 
right  to  have  disregarded  the  action  of  the  Executive  when  it  is  beyond  his  power;  and 
has  the  further  right  to  say  when  the  States  have  exceeded  their  sovereign  powers  That 
is  the  greatest  power  ever  given  to  a  tribunal,  and  it  is,  as  I  have  said,  the  one  great 
characteristic  of  the  American  Constitution,  and  to  it  we  owe  more  of  the  subility  and 
grandeur  of  this  country  than  to  any  other  provision  in  that  instrument  .      .       u 

Those  who  have  read  the  history  of  America  know  that  the  real  law  of  America  is  what 
finally  exists  after  the  statutes  have  been  construed  and  passed  upon  by  the  courts  of 
the  land,  that  what  passes  Congress  does  not  necessarily  become  the  law  of  the  land. 
Through  the  decisions  of  the  Supreme  Court  the  Constitution,  open  to  many  constructions, 
was  so  interpreted  as  to  create  a  nation  with  power  over  matters  of  national  importance 
and  at  the  same  time  to  preserve  the  sovereign  Slates  and  thi.ir  sovereignty  over  those 
matters  peculiarly  pertaining  to  the  respective  States  and  net  to  the  nation  at  lar^e. 
There  have  been  times  when  the  decisions  of  this  court  m  the  performance  of  its 
great  functions  have  aroused  great  excitement  and  at  times  great  indignation ;  but  with 
the  exception  of  the  Dred  Scott  case  |19  Howard,  393,  decided  m  1H561  nearly  every 
decision  of  that  court  undertaking  to  lay  down  the  limits  of  national  and  State  power 
has  met  with  the  final  approva!  of  the  American  people;  and  tOvUy  it  may  not  be  inappro- 
priate, when  it  has  become  t'lt  fashion  of  some  of  those  in  higii  r'ices  to  criticise  the 
judiciary,  to  call  attention  to  thc.e  facts.  Certainly,  no  man  from  my  section  of  the  country 
should  ever  care  to  utter  a  ccidv-mnation  of  the  judiciary,  for  when  passion  ran  not,  when 
men  had  lost  their  judgment,  when  the  results  of  four  years  of  bitter  war  produced  legis- 
lation aimed  not  at  justice,  but  frequently  at  punishment,  it  was  the  Supreme  Court  that 
stood  between  the  cifi;!en  and  his  liberties  ar.i  the  passion  of  the  hour.  AnA  I  trust  the 
dav  will  never  come  when  the  American  people  will  not  be  willing  to  submit  respectfully 
and  gladly  to  the  decrees  of  that  august  tribunal.  Temporarily  they  may  seeni  to  thwart 
the  will  of  the  people,  but  in  their  final  analysis  they  will  make,  as  they  have  made, 
for  orderly  government,  for  a  government  of  laws  and  not  of  men.  and  we  may  be  sure 
that  the  Supreme  Court  in  the  pure  atmosphere  of  judicial  inquiry  that  has  a! wajs  sur- 
rounded it  will  arrive  at  a  better  interpretation  of  the  powers  of  both  State  and  National 
Governments  than  can  be  possibly  hoped  for  in  a  forum  like  this,  where  popular  prejudice 
and  the  passions  of  the  hour  affect  all  of  us,  whether  we  will  or  no.  (Sfc-cli  of  the 
Honorable  Swagar  Shertew  of  Kentucky,  >n  the  House  of  Representatives.  January  10, 
J908,  the  Cottgrestional  Record,  Sixtieth  Congress,  First  Session,  ^ol  XUI,  1908, 
P-  5S9) 


CHAPTER  XII 

CREATION   OF   THE  SUPREME   COURT 

When  the  convention  assembled  in  Philadelphia  in  the  month  of  May, 
1787,  to  eliminate  the  weaknesses  of  the  Confederation  and  to  correct  its 
faults,  it  was  evident  that  an  agency  of  a  judicial  n.'ture  would  be  created, 
invested  with  the  right  and  the  duty  to  pass  upon  questions  of  an  interna- 
tional nature,  in  order  that  the  department  of  the  government  responsible 
for  foreign  affairs  should  not  be  embarrassed  by  what  might  be  called  a 
luxury  of  judicial  decision,  because  the  holdings  of  thirteen  courts  of  the 
States  on  one  and  the  same  international  question  whereof  they  might  take 
jurisdiction  would  embarrass  the  government,  whatever  its  form  might  be, 
and  prevent  foreign  nations  from  entering  into  relations  with  this  govern- 
ment when  the  relations  might  be  interpreted  by  one  of  the  contracting 
parties  in  some  thirteen  different  ways.  It  was  also  evident  that  this  agency 
of  a  judicial  nature,  for  like  reasons,  would  be  entrusted  with  the  interpre- 
tau.,n  of  the  laws  of  the  Union,  because  the  right  assumed  and  exercised 
by  one  State  to  interpret  the  meaning  of  a  federal  law  meant  the  possibility 
of  thirteen  different  interpretations,  since  if  one  State  had  the  right  to 
interpret  such  a  law.  all  the  States  would  possess  this  right ;  for,  whatever 
form  the  Union  might  take,  they  would  at  least  insist  upon  their  sovereignty 
and  equality  in  their  relations  one  with  another.  The  neccssitv  of  some  kind 
of  judicial  agency  of  a  confederate  character  had  been  recognized  and  had 
been  partially  met  in  the  9th  of  the  Articles  of  Confederation,  vesting  the 
United  States  in  Congress  assciniijcd  with  the  right  to  appoint  courts  for 
the  trial  of  piracies  and  felonies  committed  upon  the  high  seas;  for  the 
trial  and  disp-isition  of  cases  of  capture  on  land  and  pea,  and  for  the  trial 
and  disposition  of  disputes  between  the  sovereign,  free  and  equal  States 
forming  the  Confederation. 

The  lack  of  an  adequate  agency  of  a  judicial  nature  was  one  of  the 
admitted  weaknesses  and  faults  of  the  perpetual  I'nion  created  by  the 
Articles  of  Confederation.  Indeed  a  very  keen  observer  and  one  whose 
opinion  is  law  in  this  matter  declared  that  the  want  of  an  adequate  judicial 
powe.-  was  its  greatest  defect.  Thus.  Alexander  Hamilton  felt  himself  justi- 
fied in  saying  in  The  Federalist: 

A  circumstance,  which  crowns  the  defects  of  the  confedpration.  remains 
yet  !()  If.  mentioned— the  want  of  a  judiciary  power.  Laws  are  a  dead 
letter.  Mtliout  courts  to  expound  and  define  their  true  meaning  and  opera- 

»4- 


Secntiij  tar 
.1  Common 
Judiciary 


1 

I  r 


248 


THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


Wi 


Problem  of 
Sovereignly 


tion  The  treaties  of  the  United  States,  to  have  any  force  at  all,  must  be 
considered  as  part  of  the  law  of  the  land.  Their  true  i.iiport,  as  far  as 
respects  individuals,  must,  like  all  other  laws,  be  ascertained  by  judicial 
determinations,  lo  produce  uniformity  in  these  determinations,  they  ought 
to  be  submitted  in  the  last  resort,  to  one  S(  IPREME  TRIBUN.XL.  And  this 
tribunal  ought  to  be  instituted  under  the  same  authority  which  forms  the 
treaties  themselves.  These  ingredients  are  both  indispensable.  If  there  is 
in  each  state  a  court  of  final  jurisdiction,  there  may  be  as  many  diflferent 
final  determinations  on  the  same  point,  as  there  are  courts.  There  are 
endless  diversities  in  the  opinions  of  men.  We  often  see  not  only  different 
courts,  but  the  judges  of  the  same  court,  differing  from  each  other.  To 
avoid  the  confusion  which  would  unavoidably  result  from  the  contradictory 
decisions  of  a  number  of  independent  judicatories,  all  nations  have  found 
it  necessary  to  establish  one  tribunal  paramount  to  the  rest,  possessing  a 
general  superintendance,  and  authorized  to  settle  and  declare  in  the  last 
resort  an  uniform  rule  of  civil  justice. 

This  is  tlie  more  necessary  where  the  frame  of  the  government  is  so 
compounder!.  ;  .M  the  laws  of  the  whole  arc  in  danger  of  being  contra- 
vened bv  ''.(  i.  vs  of  the  parts.  In  this  case,  if  the  particular  tribunals 
are  invi  M  i  wiJ.  a  right  of  ultimate  decision,  besides  the  contradictions  to 
be  expecua  from  difference  of  opinion,  there  will  be  much  to  fear  from 
the  bias  of  local  views  and  prejudices,  and  from  the  interference  of  local 
regulations.  .-\s  often  as  such  an  interference  siiould  happen,  there  would 
be  reason  to  apprehend,  that  the  provisions  of  the  particular  laws 
might  be  preferred  to  those  of  the  general  laws,  from  the  deference  with 
which  men  in  office  naturally  look  up  to  that  authority  to  which  they  owe 
their  official  existence.  The  treaties  of  the  I'nited  States,  under  the  present 
constitution,  are  liable  to  the  inf tactions  of  thirteen  different  legislatures, 
and  as  many  different  courts  of  final  jurisdiction,  acting  under  the  authority 
of  those  legislatures.  The  faith,  the  reputation,  the  peace  of  the  whole 
union,  arc  thus  continually  at  the  mercy  of  the  prejudices,  the  passions, 
and  tlie  interests  of  every  member  of  which  these  are  composed.  Is  it 
possible  that  foreign  nations  can  either  respect  or  confide  in  such  a  gov- 
ernment? Is  it  possible  that  the  people  of  America  will  longer  consent  to 
trust  their  honour,  their  happiness,  their  safety,  on  so  precarious  a 
foundation? ' 

The  members  of  the  Confederation  were  thus  faced  with  the  problem  of 
devising  an  agent  of  a  judicial  nature  which,  while  adetiuate  for  the  pur- 
poses of  the  Union  in  it>  internatinnal  .ispect,  would  meet  the  api>roval  of 
the  thirteen  States,  holding  themselves  to  he  -uvereign.  'rce  and  independent. 
The  problem  was  complicated  by  the  existence  of  this  sovereignty  whereof 
each  State  considered  itself  to  be  possessed,  as,  in  the  words  of  Hamilton. 

'The  F.deralist,  1«02.  \'nl    !,  pp.  145-6.     Paper  xxii 

In  a  later  paper  of  The  Federalist  the  principle  involved  in  uniform  determinations  ij 
thus  expressed :  /  ,        i  r 

If  there  are  such  thinRS  as  political  axioms,  the  propriety  of  the  ludicial  power  o'  a 
government  being  ro-extensive  wil'i  its  |p(jislali\f,  may  l.i  r.-.rk-d  imone  the  nii'nher.  1  ne 
mere  necessity  of  uniformity  in  the  interpretation  of  the  national  l.iws  decides  ih,  juestion. 
Thirteen  independent  courts  of  hnal  ninsdirtion  over  th^'  same  cause  arising  •:..m  the 
same  laws,  is  a  hydra  in  government,  from  which  i  othing  but  contradiction  and  confusion 
can  proceed,     ^\■ol    II,  p.  Z2A,  Taper  Ixxx.i 


CHEATION  OF  THE  SUPREME  COURT 


a«9 


again  expressed  in  The  Federalist.  "  It  is  i::herent  in  the  nature  of  sov- 
ereignty, not  to  I)e  amenable  to  tiie  suit  of  an  individual  zinthout  its  consent." 
In  this  passage  he  was  tinubfless  making  a  roncession  against  his  persona! 
convictions,  and  lest  he  might  seem  to  be  renouncing  in  The  Federalist  views 
which  he  had  expressed  on  other  public  occasions,  he  hastened  to  add : 

This  is  the  general  sense,  and  the  general  practice  of  mankind ;  and  the 
exemption,  as  one  of  the  attributes  of  sovereignty,  is  now  enjoyed  by  the 
government  of  ivery  state  in  the  Union.  Unless,  therefore,  there  is  a  sur- 
render of  this  immunity  in  the  plan  of  the  convention  it  will  remain  with 
the  states.   .    .    .' 

The  men  who  met  in  conference  in  Philadelphia  during  the  summer 
montlis  of  1787  appreciated  tliis  crowning  weakness  of  the  Confederatiim, 
and  their  wisdom  and  ingenuity  met  ami  overcame  the  ditilicidties  involved 
in  the  creation  of  a  Supreme  Cot'rt  of  a  Uniim  composed  of  States  retaining 
the  powers  which  they  did  not  expressly  grant  to  the  Government  of  the 
new  Union,  or  whose  exercise  would  not  be  incompatible  with  the  powers 
vested  m  the  Union,  by  necessary  implication,  or  of  which  they  had  not 
themselves  consented  to  renounce  the  exercise.  The  framers  of  the  Con- 
stitution followed  the  example  ui  Solon,  the  renowned  law-giver  of  antiquity, 
who,  as  stated  by  one  of  the  members  of  tlic  Convention  in  the  course  of 
debate,  "  gave  the  Athenians  not  the  best  Govt,  he  could  devise:  but  the 
best  they  wd.  receive."  " 

There  appears  to  have  Iwen  not  merely  substantial  but  general  agreement 
that  there  should  l)e  an  a*lequate  judicial  agency  of  the  States,  and  there 
seems  also  to  have  been  no  opposition  tn  its  creation.  There  was  much 
debate  and  ditTercnce  of  opinion  as  to  whether  the  judiciary  sbould  have 
original  or  whether  it  should  only  have  appellate  jurisdiction,  whether  it 
should  consist  of  one  supreme  court  to  which  appeals  should  be  made  from 
the  State  judiciaries,  or  whether  courts  inferior  to  the  Supreme  Court 
should  be  established  and  \esied  with  jurisdiction  of  matters  of  an  interest 
to  the  States  as  a  whole.  There  was  also  much  difference  of  opinion  as  to 
the  appointment  of  the  members  of  the  judiciary,  some  advocating  their 
appointment  by  the  legislature,  others  by  the  executive;  still  others,  the 
executive  in  cooperation  therewith.  When,  however,  it  was  resolved  to  con- 
stitute a  court  for  the  existing  States  and  such  others  as  might  later  join  or 
be  added  to  the  Union,  the  problem  was  solved  in  principle,  and  all  other 
questions,  however  important  in  themselves,  l>ec<ime  matters  of  detail. 

As  has  been  seen,  there  were  two  great  plans  laid  liefore  the  Convention : 

'  Ihid..  p.  2.'8     P.ipcr  Ixxxi. 

'  /iii£-i*m.'ii((iry  History  of  the  Constitution,  Vol.  Ill,  p.  68.     Mr.  Butler,  session  of  June 
5,  1787. 


Pifferences 
of  ■  tpini'-n 


T}:i"    Two 
I'lans 


'ISPOSHtSXh 


■issjiisesei: 


250 


THE   UNITED  STaTKS:  A  STUDY   IN   INTEtNATIONAL  ORGANIZATION 


.* 


The    Viriittitn 
Plan 


one.  the  Virfintan  plan,  which  the  small  States  regarded  as  conceived  in 
the  interest  of  the  large  States;  and  the  other,  known  as  the  New  Jersey 
plan,  expressly  conceived  in  the  interest  of  the  smaller  States.  In  the  matter 
of  the  judiciary  there  was  likewise  a  difference  between  the  Virginian  and 
the  New  Jersey  plan   but  both  plans  advocated  the  creation  of  a  judiciary. 

The  Journal  of  tlie  Convention  states,  in  its  entry  of  May  29,  1787,  that 
"  Mr.  Randolph,  one  of  the  deputies  of  V^irginia,  laid  before  the  house,  for 
their  consideration,  sundry  propositions,  in  writing,  concerning  the  Ameri- 
can confederation,  and  the  establishment  of  a  national  government,"  *  and 
it  was  ordered  that,  on  the  morrow.  "  the  propositions  this  day  laid  before 
the  house,  for  their  consideration,  by  Mr.  Randolph,"  l)e  referred  to  the 
said  Committee  of  the  whole  House  to  consider  the  state  of  the  American 
Union.-  James  Madison's  Xotes,  the  chief  source  of  our  knowledge  of  the 
proceedings  of  the  Convention,  give  a  summary-  of  these  resolutions,  which 
must  l)e  regarded  as  their  most  authentic  text,  as  unfortunately  the  original 
text  which  Mr.  Randolph  laid  l)efore  the  Convention  has  not  been  preserved 
other  than  in  Mr.  Madison's  handwriting.  According  to  this  draft  it  was 
to  l)e  resolved  "  that  the  articles  of  Confederation  ought  to  be  so  corrected 
&  enlarged  as  to  accomplish  the  objects  proposed  by  their  institution; 
namely.  '  common  defence,  security  of  liberty  md  general  welfare.'  "  '  To 
cfifect  these  objects,  a  national  legislature,  consisting  of  two  branches,  was 
to  be  formed,  a  national  executive  to  be  instituted,  and  a  national  judiciary 
to  be  established. 

It  is  to  be  observed,  in  this  connection,  that  the  very  first  draft  of  the 
new  instrument  of  government  provided  for  the  threefold  division  into  a 
legislative,  executive  and  judicial  department  thereof,  a  principle  borrowed, 
it  would  appear,  from  Montesquieu,  and  regarded  as  a  matter  of  faith  by 
.■\niericans,  then  as  now.  The  article  on  the  judiciary,  as  given  by  Madison, 
reads : 


9,  Res'',  that  a  National  Judiciary  be  established  to  consist  of  one  or 
more  supreme  tribunal::  and  of  inferior  trihunalh  to  Ix-  chosen  by  the 
National  Letjislaturc,  ti)  hold  their  ufilices  dtirin),'  yood  behaviour;  and  to 
receive  punctually  at  stated  times  fixed  compensation  for  tneir  services,  in 
whicii  nil  increase  or  diminution  sliall  he  niiidc  so  as  to  atTect  the  persons 
actually  in  oflkre  at  the  time  of  such  increaw  or  (iiiiiinution.  that  the  juris- 
diction of  the  interior  tribunals  shall  he  t"  bear  &  determine  in  the  first 
instance,  and  of  the  supreme  tribunal  to  hear  and  determine  in  the  dernier 
resort,  all  piracies  iS.-  felonies  on  the  high  >eas.  captures  from  an  enemy; 
cases  in  which  foreifncrs  or  citizens  of  other  States  applying  to  such  juris- 
dictions may  he  interested,  or  which  respect  the  collection  of  the  National 

'  /nurtiiil   ,(.ft  tiiirl  PtHCcdmos  of  lite  Convention.  i787,   (1819).  ;i   66. 

■  ii'id .  |.p  ;o-t. 

'  i}ocumeniar\  llishiry  .  ,'  the  i'nnsiilutwn.  Vol.  Hi.  p    17. 


CREATION   OF  THE  SUPREME  COURT 


251 


revenue;  impeachments  of  any  National  officers,  and  questions  which  may 
mvolve  the  national  peace  and  harmony.' 

On  the  same  day  the  Journal  contains  the  following  entry: 

Mr.  Charles  Pinckney,  one  of  the  deputies  of  South  Carolina,  laid 
before  the  house  for  their  consideration,  the  draught  of  a  federal  govern- 
ment to  be  agreed  upon  between  me  free  and  independent  states  of 
America.' 

Unfortunately,  the  text  of  Mr.  Pinckney's  draft  is  not  presei^-ed  in  the 
Journal  of  the  Convention  in  original  or  summary  form.  It  was  presented 
after  Mr.  Randolph's  propositions,  themselves  preceded  by  a  lengthy  address 
of  their  proposer.  It  was  doubtless  late  in  the  day,  so  that  Mr.  Pinckney 
did  not  have  time  to  accompany  them  with  an  address,  although  he  is 
reported  by  Robert  Yates,  in  his  notes  of  that  day,  as  saying  that  "  he  had 
reduced  his  ideas  of  a  new  government  to  a  system,  which  he  read,  and  con- 
fessed it  was  grounded  on  the  same  principle  as  of  the  above  resolutions." » 
In  any  event,  the  text  of  Mr.  Pinckney's  plan  did  not  seem  to  impress  the 
members  present,  as  it  was  apparently  not  deemed  of  sufficient  importance, 
then  or  later,  to  be  abstracted  by  Mr.  Madison.  It  is  not  referred  to  in  the 
accounts  of  Mr.  McHenrj-  or  Mr.  Patterson,  both  of  whom  were  present 
and  made  careful  summaries  of  Mr.  Randolph's  proposals.  It  was  not 
adopted  or  considered  in  the  Conference,  other  than  to  be  referred,  appar- 
ently as  a  compliment,  to  the  Committee  of  Detail  along  with  Mr.  Ran- 
dolph's resolutions,  in  the  form  in  which  they  had  been  amended,  and  the 
New  Jersey  resolutions,  presented  by  Mr.  Patterson  for  such  consideration 
as  the  memliers  of  the  Committee  might  care  to  give  to  them. 

As  in  the  case  of  Mr.  Randolph's  original  propositions,  it  was  ordered 
"that  the  said  draught  be  referred  to  the  committee  of  the  whole  house 
appointed  to  consider  of  the  state  of  the  American  union."  *  On  the  fol- 
lowing day.  Mr.  Randolph's  resolution  in  favor  of  a  national  government, 
consisting  of  a  legislative,  judicial  and  executive  department,  was  taken  upi 
on  which  there  is  the  following  record  in  the  Journal : 

Resolved,  That  a  national  government  ought  to  be  established,  consisting 
ot  a  supreme  legislative,  judiciary,  and  executive.' 

On  June  4th  the  Convention  took  up  the  discussion  of  the  ninth  article 
of  M.-.  Randolph's  propositions,  which,  like  the  ninth  article  of  the  Con- 
federation, dealt  with  a  judiciary,  and  on  this  point  the  Journal  reads: 

'  Ibid.,  o.  19. 

'  Journal  of  the  Convention,  p.  71. 

■  Robert  Yates,  Secr.-l  Proceedings  and  Debates  0/  Ih*  Convention.  1821,  p.  97. 

Journal  of  me  C onvenltun,  i).  61. 
'  Ibid.,  p.  82. 


'!! 


if 


-'^  n 


fft«, 


252  THE  UNITED  STATES:  A   STUDY  IN   INTEENATIONAL  OEGANIZATIOK 

When,  on  motion  to  agree  to  the  first  clause,  namely, 
"Resolved,  That  a  national  judiciary  be  established," 

It  passed  in  the  affirmative. 

It  was  then  moved  and  seconded  to  add  these  words  to  the  first  clause 
of  the  ninth  resolution,  n.nmely, 

"  To  consist  of  one  supreme  tribunal,  and  of  one  or  more  inferior  tri- 
bunals." 

And  on  the  question  to  agree  to  the  same. 

It  passed  in  the  affirmative.' 

On  the  5th  of  June  the  Committee  of  the  Whole  further  considered  Mr. 
Randolph's  ninth  resolution,  and  in  the  matter  of  inferior  tribunals  struck 
out  the  words  "  one  or  more." '  In  the  same  connection,  the  phrase  "  the 
national  legislature "  was  stricken,  leaving  the  question  of  selecting  the 
judges  to  be  decided  later;  so  that  the  ninth  resolution,  as  then  approved  by 
the  Committee,  read: 

Resolved.  That  a  national  judiciary  be  established  to  consist  of  one 
supreme  tribunal,  and  of  one  or  more  inferior  tribunals,  to  be  appointed 
by  ;  to  hold  their  offices  during  goo<l  tehaviour ;  and  to 

receive  punctually,  at  stated  times,  a  fixed  compensation  for  thtir  services, 
in  which  no  increase  or  diminution  shall  be  iiia<ie.  so  as  to  affect  the  per- 
sons actually  in  office,  at  the  time  of  such  increase  or  diminution. 

Further  consideration  of  the  resolution  was  postponed. 

Later  in  the  day  the  Convention  returned  to  the  ninth  article,  and  on 
motion  of  John  Rutledge,  later  Chief  Justice  of  the  United  Statics,  seconded 
by  Roger  Sherman  of  Connecticut,  who  has  the  unique  distinction  of  having 
signed  the  Declaration  of  Independence,  the  .\rticles  of  Confederation  and 
the  Constitution  of  the  United  States,  that  portion  of  Mr.  Randolph's  reso- 
lution relating  to  inferior  tribunals  was  rejected  and  the  following  additional 
clause  was  added  to  the  resolution; 


That  the  national  legislature  be  empowered  to  appoint  inferior  tribunals." 

Tlie  proposition  to  limit  the  judicial  power  of  the  United  States  to  one 
supremo  tribunal,  without  inferior  courts  as  proposed  by  .Mr.  Kutledge.  and 
accoi)ted  for  the  time  being  by  the  Convention,  was  a  matter  of  great  impor- 
tance an<l  was  iu■^tly  considered  as  such.  James  Madison,  a  future  presi- 
dent, and  James  Wilson,  a  future  justice  of  the  Supreme  Court,  took  issue, 
and  with  the  support  of  John  Dickinson  and  Kufus  King  eventually  car- 
ried   the  point   against    Me'^srs.    Rutledge   and   Sherman.     Mr.    Madison's 

^  Jx.irnal  of  Ike  Comentton,  \>.  98. 
'Ibid.,  p.  99, 
•  Ihui .  p.  1(12. 


CREATION   or  THE  SUPREME  COURT 


25J 


u 


L 


Notes  fortunately  give,  although  very  briefly,  the  views  of  the  different 
members.    Thus,  John  Rutledge  argued: 

That  the  State  Tribunals  nught  and  ought  to  be  left  in  all  cases  to 

bTnal'b^inJ"..  ffici  Tr""  "^  V^""  ""^  ''PP*^^'  '°  "^•^  ^"P^'^"'"  nation^  tr° 
buna   beiHR  sufficient  to  secure  the  national  rights  &  uniformity  of  Judgm«'. 

sue,  ^nn"'  ?'''  ■■'"  """^•'^"^^y  encroachment  on  the  jurisdiction  of  the 
fystem.'  "^  unnecessary  obstacles  to  their  adoption  of  the  new 

Upon  this,  Mr.  Madison,  to  quote  his  Notes  again, 

observed  that  unless  inferior  tribunals  were  dispersed  throughout  the 
Republic  vv.th  final  jurisdiction  m  many  cases,  appeals  would  be  multiplied 
r^jr  "PP^^^^'^^^-J^K^e*--;  that  besides,  an  appeal  would  not  in  many 
cases  be  a  remedy.  What  was  to  be  done  after  improper  Verdicts  in  State 
tnbunals  obtained  under  the  biased  directions  of  a  dependent  Judge  or  the 
ocal  prejudices  of  an  undirected  jury?    To  remand  the  cause  for  a  new 

would  obhgo  the  parties  to  bring  up  their  witnesses,  tho'  ever  so  distant 
n!T'„!f  fat  «,f  the  Court.  An  effective  Judiciary  establishment  com- 
menMirate  to  the  legislative  authority,  was  essential.  A  Government  with- 
out a  proper  I- xecutive  &  Judiciary  would  be  the  mere  trunk  of  a  body 
without  arms  or  legs  to  act  or  move.' 

The  difficulty  was  real  and  serious,  yet  capable  of  solution,  for  the 
power  might  be  granted,  leaving  it  !,>  the  future  ^o  determine  whether  it 
should  W  exercised  or  not.  This  suluti..,,  api)ears  to  have  been  suggested  by 
Mr.  Dickinson,  who  is  represented  by  Mr.  .M.n.li.on  as  contending  "strongly 
that  if  there  was  to  be  a  .National  Legislatnre.  there  ought  to  l)e  a  national 
Judiciary,  and  that  the  former  ought  to  have  authority  to  institute  the 
latter."  ' 

I'pon  the  passing  of  Mr  R,itl«lge-s  tnotion  to  strike  out  "  inferior  tri- 
bunals. '  .Messrs.  Wilson  and  Madison  "  tiu-ti  moved,  in  pursuance  of  the 
idea  e.xpressed  above  by  Mr.  Dickin.son," 

to  add  to  Resol:  9.  the  words  following  "that  th,-  N'ation.al  Legislature  he 
empowered  to  institute  infcnur  „ih„n,ds  "  Th.v  observed  that  there  was 
a  distinction  between  cstabhslnng  such  tribunals  .il.solutclv.  an,l  trivinir  a 
d.scret„,n  to  the  Legislature  to  establish  or  not  establish  the.,.  Thev 
repeated  tlie  necessity  «t  some  sucii  provision.* 

This  motion  was  carrie.l.  which  did  not  <lirect  but.  what  would  o>  Kecess,t> 
amount  to  the  same  thing  in  the  course  of  time,  empowered  the  legislature 
to  institute  interior  tribunals. 

.' fl"' j""""""'*'  History,  Vol.  Ill,  p.  67. 

Ibid. 
'Ibid,  p.  68. 
*  Ibid. 


m 


ili_ 


i 


254         THE  UNITBD  BTATIS:  A  STUDY  IN  INTUNATIONAL  OBGANIZATIOM 

On  June  12th  the  matter  of  the  judiciary  was  again  taken  up.  and  on 
the  day  following  Mr.  Randolph's  ninth  resolution  was  approved  in  the  form 
which  it  had  assumed  as  the  result  of  discussion  and  debate  in  the  Com- 
mittee of  the  Whole.*  On  the  first  of  these  days  the  resolution  fared  very 
badly.  The  proceedings  on  June  12th  were  negatived;  not  merely  were  the 
leaves  plucked  from  the  branches,  but  the  branches  themselves  were  torn 
from  the  trunk,  reminding  one  very  much  of  Dr.  Franklin's  famous  anec- 
dote anent  "John  Thompson,  Hatter,  makes  and  sells  hats  for  ready 
money,"  which  simple  sign,  when  revised,  had  lost  the  statement  that  John 
Thompson  sold  hats  and  made  hats,  and  left  the  sign  with  but  a  picture  of 
a  hat  to  indicate  what  manner  of  man  he  was  and  what  calling  Johtj 
Thompson  followed.'  Thus,  to  quote  Madison's  Notes,  which  are  usually 
fuller  than  on  this  occasion: 

It  was  moved  &  2^'"'.  to  alter  Resol ;  9.  so  as  to  read  "  that  the  jurisdiction 
of  the  supreme  tribunal  shall  be  to  hear  &  determine  in  the  dernier  resort,  all 
piracies,  felonies,  &c  " 

It  was  moved  &  2"*^.  to  strike  out  "  all  piracies  &  felonies  on  the  high 
seas,"  which  was  agreed  to. 

It  was  moved  &  agreed  to  strike  out  "  all  captures  from  an  enemy." 

It  was  moved  and  agreed  to  strike  out  "  other  States  "  and  insert  "  two 
distinct  States  of  the  Union." 

It  was  moved  &  agreed  to  postpone  the  consideration  of  Resolution  9. 
relating  to  the  Judiciary :  • 

After  this,  it  is  no  wonder  that,  to  quote  the  concluding  line  of  Mr.  Madison's 
entry  for  the  day,  "  The  Com',  then  rose  &  the  House  adjourned." 

This  does  not  mean,  however,  that  there  was  opposition  to  the  court  or 
to  its  jurisdiction,  but  that  the  Convention  was  pursuing  the  course  of 
international  conferences  and  of  large  bodies,  in  which  broad  principles 
are  proposed  and  debated  to  advantage  and  matters  of  detail  are  referred 
to  a  smaller  body  for  consideration  and  report.  The  first  entry  in  Mr. 
Madison's  Notes  for  the  next  day.  June  13th.  shows  that  the  leaders  of  the 
Convention  had  come  to  this  conclusion,  for.  the  consideration  of  the  ninth 
resolution  being  resumed,  "  the  latter  parts  of  the  clause  relating  to  the  juris- 
diction of  the  Xat'.  tribunals  was  struck  out  nem.  con  in  order  to  leave  full 
room  for  their  organization."  *  \\e  d ->  not  need  to  speculate  as  to  the  reason 
for  this  motion  on  Ix-haf  of  \li  sponsors,  as  it  is  specifkally  stated  in  Robert 
Yates'  notes  of  the  13th.  which  on  this  point  are  more  elaborate  than  usual 
and  more  satisfactorv  than  Mr.  Madison's.     Thus,  according  to  Mr.  Yates: 

'  Pocumenlary  Historv,  Vol.  Ill,  p.  122. 

'A.  H,  Smjth,  The  iVrilings  of  H,-»tamin  Franklin,  Vol.  I.  pp.  38-9. 

'  Oocumtntary  History,  Vol.   Ill,  p    117. 


I 

i 


s 


CIEATION   or  THE  SUPKEME  COUIT  255 

iud&rv^l£'?hi^^rH"'"*  '*''  ''""'=""y  '"  "tabli.hing  the  power,  of  the 

wmmmmM 

txtfZ^oall'JLn/Jr        '  i'*''"d,cUon  of  the  national  judiciary  shall 

The  indefatigable  Mr.  Pinckney  and  the  experienced  Mr.  Sherman  thereupon 
moved  that  the  judges  of  this  supreme  tribunal  should  be  appointed  by  U^e 
national  legislature.    Mr.  Madison,  as  recorded  in  his  Notes 

Sl'l  ^A  *"  'fP'^^'y  ♦»>«  «rhole  Legislature.  Many  of  them  were  incom- 
petent  Judges  of  the  requisite  qualirications.  They  were  t^  much  inZ 
ended  by  the.r  Durtialities.  The  candidate  who  was  present  who  had  du' 
played  a  talent  for  business  in  the  legislative  field,  who  had  p;;rhaDs  assisted 
.gnorant  members  in  business  of  their  own,  or  of  thefr  TonstUuenU  or 
fof  an''exprrrofThe"  l/""''  "'^"'  ""^  °^  '"'^  essential  "qSSLn 

proposed  that  the  appointment  should  be  made  by  {he  Senate    S  as  a 

whch  w!fr"«*  "T  ''^'''  ''"^y-  ^•°"'*»  ^  •"««  competent"  judges   and 
which  was  sufficiently  numerous  to  justify  such  a  confidence  in  them  i 

Messrs.  Pinckney  and  Sherman  were  convinced  by  this  statement,  as  was 

te^l.  TT"'  ""^''^  '''P"""'  ^""^  '^'  '""'"-'  'he  appointment  by 
the  Senate.  At  this  session,  on  the  13th  of  June,  the  Committee  of  the  Whole 
reported  on  Mr.  Randolph's  propositions  as  approved  by  it,  of  which  the 
portions  concerning  the  matter  in  hand  are  as  follows: 

trib"naMl^'''jXf  i5"'K^".'f'''!7  ^  established,  to  consist  of  one  supreme 
triDunal.  the  Judges  of  which  to  he  appo mted  by  the  2''  hranrh  nf  tt,»  M-.i 

ln^f^tt=S\i:r-Vd^^^^^^^^ 

Tribunal"  '  ""^  ^'''   ^^'^'^'•"^e  be  empowered  to  appoint  inferior 

whifh^'resSt'^IL^^cdSn"  "VS  ^'^;' .Judiciary  shall  extend  to  all  cases 
n"  1   nffit«  A  "^""ection  of   the   Nat',    revenue,   impeachments  of   anv 

N.t'.  Officers,  and  qivstions  which  involve  the  national  peace  &  harmony.^ 

So  matters  stood  when  the  smaller  States,  which  had  remained  in  the 
background  and  contented  themselves  with  amending  the  propositions  of  the 

'Secret  Proceedings  and  Debates,  pp.  119   120 
/'ofWBM-nforj  History.  Vol.  Ill,  p.  118. 
/Old.,  p.  122. 


M 


H 


■•%  \ 


fH*!* 


Th«    , 
Nrw  JCTMir 
Plan 


256  THE   UNITID  statu:   a   rrUOY   m    IHTEIMATIONAL  OBfiANIlATIOM 

larger  Sutes.  began  not  only  to  gather  confidence  and  to  play  a  larger  part 
ill  the  proceedings,  but  to  present  a  plan,  conceived  in  their  interest*.  a»  they 
believed  the  Virginian  plan  to  be  conceived  in  the  interests  of  the  larger 
States.  The  Virginian  plan,  as  originally  submitted  and  amended  in  the 
Committee  of  the  Whole,  did  not  please  the  delegates  of  the  smaller  States, 
of  which  Mr.  William  Patterson,  later  a  Senator  from  New  Jersey  and  a 
Justice  of  the  Supreme  Court  under  the  Constitution,  may  be  considered  the 
mouthpiece,  and  who.  after  conference  with  friends  who  shared  his  views, 
and  in  tlicir  behalf,  presented  on  the  ISth  day  of  June  what  is  generally 
called  the  New  Jersey  plan.  This  plan  admitte<l  the  defects  of  the  Con- 
federation and  recognized  that  the  Articles  thereof  could  and,  as  expressed 
in  the  first  projwsition  of  the  New  Jersey  plan.  "  ought  to  be  so  revised,  cor- 
rected &  enlarged,  as  to  render  the  federal  Constitution  adequate  to  the 
exigencies  of  Government,  &  the  preservation  of  the  Union."  '  The  Con- 
gress was  to  Ik-  authorized  "  to  pass  Acts  for  the  regulation  of  trade  &  com- 
merce as  well  with  foreign  nations  as  with  each  other:  provided  that  all 
punishments,  tines,  forfeitures  &  penalties  to  Iw  incurred  for  contravening 
such  acts  rules  and  regulations  shall  be  adjudged  by  the  Common  law 
Judiciarys  of  the  State  in  which  any  offence  contrary  to  the  true  intent  & 
meaning  of  such  Acts  niles  &  regulations  shall  have  been  committed  or  per- 
petrated, with  lilwrty  of  commencing  in  the  first  instance  all  suits  &  prosecu- 
tions for  that  purpise  in  the  suinrrior  Common  law  Judiciary  in  such  State, 
subject  nevertheless,  for  the  correction  of  all  errors,  both  in  law  &  fact  in 
rendering  jml^jment.  to  an  appeal  to  the  Judiciary  of  the  U.  States." ' 

According  to  this  plan,  the  Government  of  the  Union  was  to  avail  itself 
of  the  courts  of  the  States  comiuising  it.  not  to  create  agencies  of  its  own 
in  the  shape  of  inferior  courts,  from  which  an  appeal  would  naturally  lie  to 
the  supreme  federal  tribunal.  This  supreme  court,  called  in  the  plan 
"  tribunal."  its  nature,  the  extent  of  its  jurisdiction  and  the  qualifications  for 
its  judges  are  defined  in  the  5th  article,  which  reads : 

Res',  that  a  federal  ludiciarv  he  established  to  consist  of  a  supreme 
Tribunal  the  IiulKes  of  which  to'l)e  appointed  by  the  Executive.  &  to  hold 
their  ofiiccs  (furing  good  l)chaviiiur.  to  receive  punctually  at  stated  tunes  a 
fixed  compensation  for  their  services  in  which  no  increase  or  diminution 
shall  be  made,  so  as  to  aflfect  the  persons  actually  in  office  at  the  time  of 
such  increase  or  diminution;  that  the  Judiciary  so  established  shall  have 
authority  to  hear  &  determine  in  the  first  instance  on  all  impeachments  of 
federal  officers,  &  l)y  wav  f)f  appeal  in  the  dernier  resort  in  all  cases  touch- 
ing the  rights  of  Ambassadors,  in  all  cases  of  captures  from  an  enemy, 
in  all  cases  of  piracies  &  felonies  on  the  high  seas,  in  all  cases  in  which 

'  Pncumi-nlary  Hillary,  Vol.  Ill,  p.   12S. 
•  Ibid.,  pp.  125-6. 


CUATION  OF  THE  lUniMB  COUtT 


237 


(orciraeri  may  be  interMted.  .n  the  conitruction  of  any  treaty  or  treaties, 
or  which  may  ariie  on  any  of  the  Act,  for  regulation  of  trade  or  tS 
collection  of  the  federal  Revenue;  that  mjne  of  the  Jud"ciary  .»Si  dur^nj 
^time  they  remain  in  Office  be  capable  of  receiving  or  hoiain*  any  S 
office  or  appomtment  during  their  time  of  tervice.  or  Tor  ^        thSJ- 


But  this  was  not  all.  The  sixth  article  contained  a  very  fruitful  sueges- 
ion.  which  was  destine.!  to  replace  the  proposal  of  a  negative  on  the  law,  of 
the  State  or  on  the  laws  of  Congress,  either  by  the  National  Legislature  or 
a  Council  of  Revision,  and.  acting  upon  individuals,  makes  a  resort  to  force 
against  the  States,  contained  in  the  last  clause  of  the  Article,  unnecessary  as 
It  was  always  inexpedient,  although  originaUy  espoused  by  such  a  man  as 
Mr.  Madison.     Thus: 

.     6.  Re,-',  that  all  Acts  of  the  U.  States  in  Cong*,  made  by  virtue  &  in 

in  ZTTy\l^r  P'T"  ^^'''^  *  ^^-'^^  ""^'"  «'  confede^aTon  vested 
in  tlinn  and  all  Treaties  made  &  ratified  under  the  authority  of  the  U 
States  shall  be  the  supreme  law  of  the  respective  States  so  far  forth  as 
Sr.H  ''?  ^-  ^''""?  *^"  ''^'"'^  •"  '^'  "^'^  ^•»«"  o^  their  Citizens   and 

decisions,  any  thing  in  the  respective  laws  of  the  Individual  States  to  the 
contrary  notwithstanding;  and  that  if  any  State,  or  any  bo<ly  of  men  n  any 
State  shal  oppose  or  prevent  y.  carrying  into  execution  such  acts  or  treaties'^ 
fid/r'^t?.;"':""'"'  '^^^  ^u  ""'horizcd  to  call  forth  ve  power  of  the  ConJ 
federa  cd  States,  or  so  much  thereof  as  may  be  necessarv  to  enforce  and 
compel  an  obedience  to  such  Acts,  or  an  Observance  of  such  Treaties ' 

It  was  recognized  that  these  nrnpositinns  could  not  lie  rejected  oflF-hand 
even  although  a  majoritv  .[  the  Convention  favored  the  X'irginian  plan' 
It  was  therefore  agreed  that  the  propositions  which  Mr.  Patterson  had  intro- 
duced as  a  substitute  for  Mr.  Randolph's  should  1^;  referre<l  to  a  Committee 
of  the  U  hole,  and  the  Randolph  plan  was  likewise  recommitted  "  in  order 
to  pl.ice  the  two  plans  in  due  comparison." ' 

On  July  18th  the  Convention  took  up  the  question  of  the  judiciary  and 
considered  the  eleventh,  twelfth  and  thirteenth  resolutions  of  Mr.  Randolph's 
plan,  as  mo(lifV<l  by  the  Committee  of  the  Whole,  in  preference  to  Mr.  Patter- 
son's plan,  which,  however,  had  been  very  carefully  considered  in  the  mean- 
time.  There  was  no  dissent  to  the  formation  )f  a  national  judiciary  or 
to  the  proposition  that  this  judiciary  should  consist  of  one  supreme  tribunal, 
but  the  debate  turned  upon  the  appointment  of  the  judges,  an  embarrassing 
difficult  and  delicate  matter.    The  views  on  this  point  were  divergent,  some 

'  Ibid.,  p.  127. 
!  Ibid.,  pp.  127-«. 
'/W,  p:i24. 


of 


Question 
Ahp'-iniment 
of  )udgei 


'! 


,1 


m 


MKtOCOry   MSOWTION  TBT  CHAIT 

(ANSI  and  ISO  TtST  CHAUT  No.  2) 


A 


/APPLIED  IM/OE    In 

16^3   Eosi    Uoir   Strict 

Roch«at«r.    H»'m   Yorii         I4e09        US* 

(716)   462  -  0300  *  Phon« 

{'16)   288-  5989  -  Fo. 


258  THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 


i-n 


w 


members  advocating  appointment  by  the  legislature,  others  by  the  second 
house,  some  by  the  executive  and  still  others  preferring  Mr.  Gorham's  sug- 
gestion that  the  "  Judges  be  appointed  by  the  Execu".  with  the  advice  & 
consent  of  the  2"*  branch,  in  the  mode  prescribed  by  the  constitution  of 
Mas*'."  '  Mr.  Gorham  stated  as  a  fact  that  "  this  mode  had  been  long  prac- 
ticed in  that  country,  &  was  found  to  answer  perfectly  well."  It  has  since 
been  practiced  in  the  United  States  and  has  likewise  been  found  to  answer 
equally  well. 

After  much  debate  without  reaching  an  agreement,  and  the  rejection  of 
Mr.  Wilson's  motion  leaving  the  appointment  of  the  judges  to  the  executive 
instead  of  to  the  second  branch,  Mr.  Gorham  moved  "  that  the  Judges  be 
nominated  and  appointed  by  the  Executive,  by  &  with  the  advice  &  consent 
of  the  2^  branch  &  every  such  nomination  shall  be  made  at  least  days 

prior  to  such  appointment."*  "This  mode,"  he  said,  according  to  Mr. 
Madison's  Notes,  "  had  been  ratified  by  the  experience  of  140  years  in  Massa- 
chusetts. If  the  app*.  should  be  left  to  either  branch  of  the  Legislature,  it 
will  be  a  mere  piece  of  jobbing." 

The  Convention  tied  on  Mr.  Gorham's  motion,  thereby  defeating  it,* 
whereupon  Mr.  Madison  moved  that  "  the  Judges  should  be  nominated 
by  the  Executive,  &  such  nomination  should  become  an  appointment  if  not 
disagreed  to  within  days  by  %  of  the  2^  branch."    On  the  21st  of  the 

month  it  was  considered  in  a  slightly  amended  form  and  in  its  stead  a  motion 
was  adopted  that  "  the  judges  of  which  shall  be  appointed  by  the  second 
branch  of  the  national  kgislature."  *  An  agreement  on  this  vexed  question 
was  therefore  very  difficult. 

The  clause  of  the  eleventh  resolution,  that  the  judges  "  hold  their  office 
during  good  behaviour  "  was  unanimously  adopted,  as  was  also  the  clause 
concerning  the  punctual  payment  of  their  salaries.  It  will  be  recalled  that, 
as  worded,  this  clause  prevented  an  increase  or  diminution  of  the  salaries 
of  the  judges  during  their  tenure  of  office.  After  much  discussion  and  no 
little  misgiving  it  was  decided,  and  wisely,  by  a  vote  of  6  to  2.  to  strike  out 
the  provision  against  the  increase  of  salaries,  and  as  thus  amended  this  por- 
tion of  the  resolution  passed  unanimously." 

The  framers  of  the  Constitution  had  decided  upon  a  division  of  power 
within  the  Government  of  the  Union,  and,  for  the  protection  of  the  judiciary 
as  well  as  for  the  impartial  administration  of  justice,  they  were  anxious 
that  the  judges,  when  and  however  selected,  should  be  independent  oi  the 

•  Documentary  History,  Vol.  Ill,  p.  363, 

•  Ibid.,  p.  366. 


tola.,  p.  joo. 

•  Ibid.,  p.  367. 

*  Journal  of  the  Convention,  p.  196. 

'Documentary  History,  Vol.  Ill,  pp.  363-8.    Session  of  July  18. 


CREATION  OF  THE  SUPREME   COURT 


259 


appointing  power.  Therefore,  they  were  to  hold  office  during  good  behavior 
and  during  their  tenure  of  office  they  were  to  receive  salaries  which  assuredly 
should  not  be  decreased,  if  indeed  they  might  be  increased,  during  their 
tenure  of  office,  even  although  they  might  depend  upon  the  pleasure  or  dis- 
cretion of  one  or  the  other  branch  of  the  Government  for  their  appointment. 
The  experience  of  colonial  days  had  shown  them  the  wisdom  if  not  the 
necessity  of  this  action  on  their  part;  but  if  they  had  forgotten  it,  they  had 
an  object  lesson  before  their  very  eyes,  for  in  the  preceding  year  the  judges 
of  Rhode  Island,  who  had  declared  a  law  of  that  State  to  be  unconstitutional 
in  the  case  of  Trczrtt  v.  IVecden,  were  summoned  before  the  Assembly  "  to 
render  their  reasons  for  adjudging  an  act  of  the  General  Assembly  to  be  un- 
constitutional and  so  void." »  Although  no  action  was  taken  against  them 
they  were  not  reelected  by  the  Legislature  at  the  expiration  of  their  terms  in 
the  spring  of  the  very  year  in  wiich  the  Federal  Convention  met  in  Phila- 
delphia. 

The  12th  resolution,  empowering  Congress  to  institute  inferior  tri- 
bunals, was  equally  fortunate,  although  it  was  objected  to.  Mr.  Sherman 
saying  that  he  was  "  willing  to  give  the  power  to  the  Legislature  but  wished 
them  to  make  use  of  the  State  Tribunals  whenever  it  could  be  done  with 
safety  to  the  general  interest." »  But  the  views  tersely  expressed  by  George 
Mason  apparently  carried  conviction,  that  "  many  circumstances  might  arise 
not  now  to  be  foreseen,  which  might  render  such  a  power  absolutely  neces- 
sary." • 

The  clause  in  the  13th  resolution,  relating  to  the  impeachment  of  national 
officers,  was  struck  out,  and  "  several  criticisms,"  to  quote  Mr.  Madison's 
Notes.  "  having  been  made  on  the  definitions  "  of  the  jurisdiction  of  the 
national  judiciary,  it  was,  with  the  approval  of  the  Convention,  recast  by 
Mr.  Madison  so  as  to  read.  "  that  the  jurisdiction  shall  extend  to  all  cases 
arising  under  the  Nat',  laws:  And  to  such  other  questions  as  may  involve  the 
Nat',  peace  &  harmony."  * 

There  seems  to  have  been  a  tacit  understanding  that,  although  the  gen- 
eral principles  of  the  Constitution  should  be  considered  in  the  Committee  of 

'Brinton  Coxe,  Judicial  Power  and  Unconstitutional  Lc,/islatio„.  1893,  p.  246. 

In  the  session  of  July  17th  of  the  Federal  Convention  of  1787,  Mr.  .Madison  said   with 
direct  reference  to  the  case  of  Trevett  v.  IVecdcn,  '  ^"" 

Confidence  cannot  be  put  in  the  State  Tribunals  as  guardians  of  the  National  au- 
thoi.ty  and  interests.  In  all  the  St.-.tes  these  are  more  or  less  depend'  on  the  Leiisla 
T^,T;.  In  Georgia  they  are  appointed  annually  by  the  Legislature.  In  R.  Island  the 
Sed  ?v°,h^  r/Ar/^^T  '"  ""5'?"^ti'.V,«.io"^.l  l^w  were  displaced,  and  others  sub- 
Dhns  of  ,hll  ^/.,  ^*""n"'''°  "^""'"^  be  willing  mstruments  of  the  wicked  &  arbitrary 
plans  of  their  masters.  Documentary  History,  Vo .  Ill,  p.  352.  .\lso  T  B  Scott 
/ud,c,al  Setllenunt  of  Controversies  betueen  States,  Vol.  I,%p.  lOW  ' 

nocumentary  History.  Vol.  Ill,  p.  369. 
Ibid, 

'Ibid. 


ii 

n 


i*. 


% 


=:=|t     = 


.1 


260  THE  UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


¥1^' 


Committee 
of  DctaU 


i  uJ'. 


the  Whole,  where  the  discussion  was  more  informal  than  in  the  Convention 
itself,  and  although  the  Convention  should  formally  pass  upon  each  clause 
of  the  Constitution,  it  would  be  necessary  to  refer  the  resolutions  agreed 
upon  to  some  committee  which  should  elaborate  them,  devise  the  frame- 
work of  the  Constitution,  and  insert  them  in  the  form  of  articles  in  the 
order  which  they  might  properly  assume  in  an  instrument  of  that  kind. 
Therefore,  on  July  23rd,  a  motion  was  made  and  unanimously  agreed  to  that 
"  the  proceedings  of  the  Convention  for  the  establishment  of  a  Nat'.  Gov', 
except  the  part  relating  to  the  Executive),  be  referred  to  a  Committee  to 
prepare  &  report  a  Constitution  conformable  thereto."  '  This  motion  was 
unanimously  agreed  to,  and,  recognizing  from  their  own  experience  in  the 
Convention  that  a  small  committee  was  more  effective  than  a  large  one,  it 
was  unanimously  resolved  that  the  committee  should  consist  of  five  members, 
to  be  appointed  on  the  morrow.  Therefore,  on  the  24th,  the  five  members 
to  compose  the  committee  to  report  a  constitution  were  elec'"id  by  ballot : 
Messrs.  Rutledge,  Randolph,  Gorham,  Ellsworth,  and  Wilson.  It  was  like- 
wise felt  that  the  committee  should  have  before  it  the  projects  relating  to  a 
constitution  which  had  been  presented  by  Mr.  Pinckney  in  his  own  behalf  and 
by  Mr.  Patterson  on  behalf  of  the  smaller  States.  They  were  therefore 
referred  to  this  committee,  henceforth  known  as  the  Committee  of  De- 
tail.' 

Inasmuch  as  the  motion  to  refer  the  resolutions  agreed  upon  was  passed  on 
the  23d,  and  as  it  was  desirable  that  the  committee  should  have  before  it 
any  resolutions  agreed  to  since  that  date,  it  was  decided  on  the  26th  to  refer 
these  as  well  to  the  Committee  of  Detail,  and,  in  order  to  give  its  members 
an  opportunity  to  consider  the  projects  and  to  report  a  draft  of  a  constitu- 
tion, the  Convention  adjourned  to  August  6th. 

In  the  very  short  period  of  ten  days,  between  the  26th  of  July  and  the 
6th  of  August,  the  committee  was  able  to  report  an  instrument  which  bears 
very  stroiig  resemblance  to  the  present  Constitution  of  the  United  States. 
On  that  day  the  Convention  met  and  each  member  was  provided  with  a 
printed  draft  which,  amended  and  improved  in  many  ways,  became  the  actual 
Constitution.  We  do  not  know  just  what  took  place  in  the  Committee  of 
Detail  during  the  intervening  ten  days,  other  than  that  the  Committee  com- 
plied with  the  directions  of  the  Convention  to  prepare  and  to  report  a  draft 
"  conformable  to  the  resolutionr  passed  by  the  Convention."  A  very  careful 
and  critical  examination  of  the  papers  and  documents  which  have  been 
preserved  in  various  ways,  and  which  have  come  to  light  in  the  course  of 
the  last  few  years,  has  enabled  students  of  the  Constitution  to  divine,  where 

'Documentary  History,  Vol.  Ill,  pp.  413-14. 
•  Ibid.,  p.  423. 


CREATION  OF  THE  SUPREME  COURT 


261 


they  can  not  actually  describe,  the  method  of  procedure.'  Among  the  papers 
of  George  Mason,  a  member  of  the  Convention,  there  was  found  a  paper  in 
Mr.  Randolph's  handwriting,  of  which  certain  parts  have  been  identified 
as  the  handwriting  of  John  Rutledge.  A,;:  mg  the  papers  in  the  possession 
of  James  Wilson,  a  member  of  the  Comi:  i.  ee  of  Detail,  there  were  various 
documents,  one  of  which  is  a  draft  of  the  Constitution  in  Wilson's  hand- 
writing, which  seems  to  have  incorporated  in  it  certain  portions  of  the 
Pinckney  draft  and  of  the  New  Jersey  plan.  It  has  been  concluded  that  the 
Committee  of  Detail,  under  Mr.  Rutledge's  chairmanship,  took  up  the  reso- 
lutions of  the  Ccnention  as  referred;  that,  after  discussion  and  debate,  and 
agreement  upon  a  general  plan,  the  resolutions  were  referred  to  Mr.  Ran- 
dolph, the  sponsor  of  the  Virginian  plan  although  he  is  not  to  be  credited  with 
its  authorship;  that  Mr.  Randolph  prepared  the  instrument  in  his  handwrit- 
ing, which  is  found  to  he  die  first  draft  of  the  Constitution,  together  with 
suggestions  and  criticisms;  that  this  diaft  was  laid  before  the  Committee  of 
Detail,  considered  by  it,  and  modifications  thereof  inserted  in  the  document  in 
the  handwriting  of  Mr.  Rutledge,  its  chairman;  that  at  a  later  stage.  James 
Wilson,  with  the  amended  Randolph  draft  before  him  and  the  Pinckney  and 
Patterson  propositions,  prepared  an  enlarged  and  revised  draft.  This,  called 
the  Wilson  draft,  was  likewise  amended  by  the  committee  and  the  changes 
incorporated  in  it  appear  to  be  in  the  handwriting  of  Mr.  Rutledge,  its 
chairman. 

Be  this  as  it  may,  the  printed  report  of  the  committee  was  laid  before 
the  Convention,  and  a  printed  copy  of  the  report  was  at  the  same  time  fur- 
nished to  each  member. 

The  articles  of  the  draft  concerning  the  judiciary,  the  Supreme  Court  "raft 
and  inferior  courts  are  as  follows:  Propo»au 


II 


« iP 


Jl  I 


VII 

Sect.  1.  The  Legislature  of  the  United  States  shall  have  the  power  .  .  . 
To  constitute  tribunals  inferior  to  the  Supreme  Court ;  .   .   . 

VIII 

The  Acts  of  the  Legislature  of  the  United  States  made  in  pursuance  of 
this  Constitution,  and  all  treaties  made  under  the  authority  of  the  United 
States  shall  be  the  supreme  law  of  the  several  States,  and  of  their  citizens 
and  inhabitants ;  and  the  judges  in  the  several  States  shall  be  bound  thereby 
in  their  decisions ;  anything  in  the  Constitutions  or  laws  of  the  several  States 
to  the  contrary  notwithstanding. 

TV '  ^*?  ^*''.  ^^T*",^'   'i*^  Framing  of  the  Constitution  of  the  Vnited  States.  Chapters 

y,^2S   ■'•  .•  J-  Franklin  J.imeson,  Studies  in  the  History  of  the  Federal  Convention 

of  1787,  in  Annual  Report  of  the  American  Historical  Association,  1902,  Vol    I    pp   89-167 


'i¥ 


262 


THE   UNITED  STATES:  A  STUDY  IN   INTEKNATIONAL  ORGANIZATION 


^' 


*    . 


IX 

Sect.  1.  The  Senate  of  the  United  States  shall  have  power  ....  to 
appoint  ....  Judges  of  the  supreme  Court. 

Sect.  2.  In  all  disputes  and  controversies  now  subsisting,  or  that  may 
hereafter  subsist  between  two  or  more  States,  respecting  jurisdiction  or  ter- 
ritory, the  Senate  shall  possess  the  following  powers.  Whenever  the  Legis- 
lature, or  the  Executive  authority,  or  lawful  Agent  of  any  State,  in  cc. 
troversy  with  another,  shall  by  memorial  to  the  Senate,  state  the  matter  in 
question,  and  apply  for  a  hearing;  notice  of  such  memorial  and  application 
shall  be  given  by  order  of  the  Senate,  to  the  Legislature  or  the  Executive 
authority  of  the  other  State  in  Controversy.  The  Senate  shall  also  assign  a 
day  for  the  appearance  of  the  parties,  by  their  agents,  before  the  House. 
The  Agents  shall  be  directed  to  appoint,  by  joint  consent,  commissioners  or 
judges  to  constitute  a  Court  for  hearing  and  determining  the  matter  in 
question.  But  if  the  Agents  cannot  agree,  the  Senate  shall  name  three  per- 
sons out  of  each  of  the  several  States ;  and  from  the  list  of  such  persons  each 
party  shall  alternately  strike  out  one,  until  the  number  shall  be  reduced  to 
thirteen ;  and  from  that  number  not  less  than  seven  nor  more  than  nine  names, 
as  the  Senate  shall  direct,  shall  in  their  presence,  be  drawn  out  by  lot ;  and 
the  persons  whose  names  shall  be  so  drawn,  or  any  five  of  them  shall  be 
commissioners  or  Judp"  s  to  hear  and  finally  determine  the  controversy ;  pro- 
vided a  majority  of  the  Judges,  who  shall  hear  the  cause,  agree  in  the  deter- 
mination. If  either  party  shall  neglect  to  attend  at  the  day  assigned,  without 
shewing  sufficient  reasons  for  not  attending,  or  being  present  shall  refuse 
to  strike,  the  Senate  shall  proceed  to  nominate  three  persons  out  of  each 
State,  and  the  Clerk  of  the  Senate  shall  strike  in  behalf  of  the  party  absent 
or  refusing.  If  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  Court ;  or  shall  not  appear  to  prosecute  or  defend  their  claim  or  cause, 
the  Court  shall  nevertheless  proceed  to  pronounce  judgment.  The  judgment 
shall  be  final  and  conclusive.  The  proceedings  shall  be  transmitted  to  the 
President  of  the  Senate,  and  shall  be  lodged  among  the  public  records,  for 
ihe  security  of  the  parties  concerned.  Every  Commissioner  shall,  before  he 
sit  in  judgment,  take  an  oath,  to  be  administered  by  one  of  the  Judges  of 
the  Supreme  or  Superior  Court  of  the  State  where  the  cause  shall  be  tried, 
"  well  and  truly  to  hear  and  determine  the  matter  in  question  according  to  the 
best  of  his  judgment,  without  favor,  affection,  or  hope  of  reward." 

XI 

Sect.  1.  The  Judicial  Power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  Courts  as  shall,  when  necessary,  from 
time  to  time,  be  constituted  by  the  Legislature  of  the  United  States. 

Sect.  2.  The  Judges  of  the  Supreme  Court,  and  of  the  Inferior  Courts, 
shall  hold  their  offices  during  good  behavior.  They  shall,  at  stated  times, 
receive  for  their  services,  a  compensation,  which  shall  not  be  diminished  dur- 
ing their  continuance  in  office. 

Sect.  3.  The  Jurisdiction  of  the  Supreme  Court  shall  extend  to  all  cases 
arising  under  laws  passed  by  the  Legislature  of  the  United  States ;  to  all  cases 
affecting  Ambassadors,  other  Public  Ministers  and  Consuls;  to  the  trial  of 
impeachments  of  Officers  of  the  United  States ;  to  all  cases  of  Admiralty  and 
maritime  jurisdiction ;  to  controversies  between  two  or  more  States,  (except 
such  as  shall  regard  Territory  or  Jurisdiction)  between  a  State  and  Citizens 


CUATION  OF  THE  SUPREME   COUBT 


263 


of  another  State,  between  Citizens  of  different  States,  and  between  a  State 
or  the  Citizens  thereof  and  foreign  States,  citizens  or  subjects.  In  cases  of 
imiieachment,  cases  affecting  Ambassadors,  other  Public  Ministers  and  Con- 
suls, and  those  in  which  a  State  shall  be  party,  this  jurisdiction  shall  be 
original.  In  all  the  other  cases  before  mentioned,  it  shall  be  appellate,  with 
such  exceptions  and  under  such  regulations  as  the  Legislature  shall  make. 
The  Legislature  may  assign  any  i-art  of  the  jurisdiction  above  mentioned 
(except  the  trial  of  the  President  of  the  United  States)  in  the  manner,  and 
under  the  limitations  which  it  shall  think  proper,  to  such  Inferior  Courts, 
as  it  shall  constitute  from  time  to  time. 

XVI 

Full  faith  shall  be  given  in  each  State  to  the  acts  of  the  Legislatures,  and 
to  the  records  and  judicial  proceedings  of  the  Courts  and  Magistrates  of 
every  State. 

XX 

The  members  of  the  Legislatures,  and  the  Executive  and  Judicial  officers 
of  the  United  States,  and  of  the  several  Sutes,  shall  be  bound  by  oath  to 
support  this  Constitution.' 

The  articles  concerning  the  judiciary  were  taken  up  on  August  27th,  when 
Dr.  Johnson  proposed  to  extend  the  judicial  power  of  the  United  States  to 
cases  involving  law  and  equity.  After  discussion  this  was  agreed  to,  and 
the  phrase  "  both  in  law  and  equity  "  was  inserted  immediately  after  "  the 
United  States,"  '  thus  making  the  first  part  of  the  section  read 

The  juii'cial  power  of  the  United  States,  both  in  law  and  equity,  shall 
be  vested  in  one  Supreme  Court. 

At  a  later  date,  namely,  on  September  15th,  the  Convention  struck  out  the 
phrase  concerning  law  and  equity  inserted  in  this  part  of  the  articles,  l)ecause 
it  was  included  in  Sec.  2,  and  therefore  did  not  need  to  be  repeated.'  The 
matter  of  the  tenure  of  judges  was  taken  up,  and  it  was  proposed  by  Mr. 
Dickinson,  that  "  after  the  words '  good  behaviour '  the  words  '  provided  that 
they  may  be  removed  by  the  Executive  on  the  application  by  the  Senate  and 
House  of  Representatives '  "  be  inserted.*  Gouverneur  Morris  thought  that 
it  was  a  contradiction  in  terms  to  say  "  that  the  Judges  should  hold  their  offices 
during  good  behavior,  and  yet  be  removable  without  a  trial,"  and  Mr.  Rut- 
ledge  called  attention  to  what  he  considered  to  be  an  insuperable  objection 
to  the  motion,  in  that  the  Supren^e  Court  was  to  judge  between  the  United 
States  and  particular  States.    The  motion  was  therefore  rejected,"  and  with 

'  Documentary  History,  Vol.  Ill,  pp.  449-57. 
"  Ibid.,  p.  623. 

*  Journal  of  the  Convention,  p.  384. 

*  Documentary  History,  Vol.  Ill,  pp.  623-4.    Session  of  August  27th. 

*  Ibid. 


:  r 


tl 


2M 


THE  UNITED  STATES:  A   STUDY  IN   INTEINATIONAL  ORGANIZATION 


*M*'*j 


modifications  of  form  suggested  by  the  Committee  of  Style,  the  article  was 
adopted  suliseantially  as  rep<^)rted  by  the  Committee  of  Detail,  and  in  the 
Constitution  as  finally  signed  the  two  sections  are  thus  merged : 

Article  III. 

Section  1.  The  judicial  Power  of  the  United  States,  shall  be  vested  in  one 
supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Offices  during  good  Behaviour,  and  shall,  at  stated 
Times,  receive  for  their  Services,  a  Comj>ensation,  which  shall  not  be  dimin- 
ished during  their  Continuance  in  Office. 

Section  3  of  the  11th  Article  reported  by  the  Committee  of  Detail  dealt 
with  the  subject  matter  of  the  2d  Section  of  the  present  Constitution,  and 
in  addition  with  some  other  matters  which  will  be  referred  to  later.  On 
August  27th,  Mr.  Madison  and  Gouvemcur  Morris,  as  stated  in  M.idison's 
Notes,  "  moved  to  insert  after  the  word  '  controversies '  the  words  '  to  which 
the  U —  S —  shall  be  a  party,'  "  '  which  had  the  effect  of  investing  the  Su- 
preme Court  with  jurisdiction  in  cases  affecting  the  United  States,  and  of 
subordinating  the  United  States  to  the  law  as  interpreted  by  the  tribunal. 
This  amendment  gave  effect  to  one  of  several  proposals'  which  Charles  Pinck- 
ney  had  made  on  August  20th,  as  follows : 

The  Jurisdiction  of  the  supreme  Court  shall  be  extended  to  all  contro- 
versies between  the  U.  S.  and  an  individual  State,  or  the  U.  S.  and  the 
Citizens  of  an  individual  State.' 

Dr.  Johnson  moved  to  amend  the  first  clause  of  the  article  as  reported  by  the 
Committee  of  Detail  by  inserting  before  the  word  "  laws  "  in  the  first  clause 
thereof,  the  expression  "  this  Constitution  and  the,"  '  which  would  have  the 
effect  of  extending  the  jurisdiction  of  the  Supreme  Court  to  all  cases  both  in 
law  and  equity  arising  under  "  this  Constitution  and  the  laws  of  the  United 
States,"  etc. 

This  raised  a  very  important  question,  which  was  at  any  rate  seen  by  Mr. 
Madison  and  called  to  the  attention  of  the  Convention,  for,  to  quote  his 
Notes,  he  "  doubted  whether  it  was  not  going  too  far  to  extend  the  jurisdic- 
tion of  the  Court  generally  to  cases  arising  Under  the  Constitution,  & 
whether  it  ought  not  to  be  limited  to  cases  of  a  Judiciary  Nature.  The  right 
of  expounding  the  Constitution  in  cases  not  of  this  nature  though  not  to  be 
given  to  that  Department."  *  That  is  to  say,  the  court  was  to  be  a  court  of  law 

'  Pocur, 


'Documentary  History,  Vol.  Ill,  p.  626. 
■  Ibid.,  p.  S66. 
626. 


-— ,  P 
'  Ibid.,  p 
'Ibid. 


CKEATIUN   OF  THE  SUPREME   COURT 


26S 


and  equity;  it  was  not  to  be  a  diplomatic  body  passing  upon  political 
questions. 

There  appears  to  have  been  no  action  taken  on  the  question  raised  by 
Mr.  Madison.  Dr.  Johnson's  motion  was  agreed  to  "  nem.  con.."  it  being  gen- 
erally supposed,  as  Mr.  Madison  says,  that  the  jurisdiction  was  constructively 
limited  to  cases  of  a  judicial  nature.* 

This  was  not  the  only  amendment  to  the  clause,  and  one  moved  \>y  Mr. 
Rutledge  gave  effect  to  one  of  the  purposes  for  which  the  Convention  had 
been  called,  namely,  to  enable  the  United  States  to  have  its  international 
obligations  passed  upon  by  a  tribunal  of  the  Union  instead  of  by  tribunals  of 
the  individual  States,  with  the  possibility  of  inconsistent  and  jarring  inter- 
pretations. Immediately  after  the  expression  "  United  States,"  contained  in 
this  clause,  Mr.  Rutledge  moved  to  insert  "  and  treaties  made  or  which  shall 
be  made  under  their  authority."  He  further  moved  the  omission  of  the 
phrase  "  passed  by  the  Legislature,"  and  both  his  amendments  carried.' 
The  amendment,  however,  was  due  to  Mr.  Madison,  upon  whose  motion  it 
had  been  debated  two  days  previously  and  in  a  different  connection,  as  will 
presently  appear.' 

VVithout  dwelling  further  upon  these  matters  at  this  time,  and  leaving 
aside  other  and  special  phases  of  the  Judiciary  which  will  be  discussed  latei; 
it  is  evident  that  the  members  of  the  Constitutional  Convention  were  intent 
upon  a  Supreme  Court  of  the  more  perfect  Union  in  the  technical  sense 
of  the  word ;  that  it  should  not  pass  upon  all  provisions  of  the  Constitution, 
but  only  upon  those  of  a  judicial  nature ;  that  the  Congress  should  have  the 
power,  to  be  exercised  in  its  discretion,  of  appointing  inferior  tribunals  from 
which  an  appeal  should  lie  to  the  Supreme  Court;  that  for  uniformity  of 
decision  appeals  should  lie  from  State  tribunals  when  national  ^r  international 
questions  were  concerned ;  and  that  in  any  event  the  provisions  of  the  Constitu- 
tion of  a  non-political  character,  the  acts  of  Congress  passed  in  pursuance  of 
tht  Constitution,  and  treaties  made  or  to  be  made  by  the  United  States,  should 
be  determined  by  the  Supreme  Court  of  the  States,  not  finally  determined 
even  by  the  Supreme  Courts  of  the  several  States.  In  a  word,  every  national 
and  every  international  act  was  in  ultimate  resort  to  be  determined  by  the 
final  judicial  authority  of  the  Union. 

The  franiers  of  the  Constitution,  however,  did  not  content  themselves  with 

a  narrow  and  technical  definition  of  judicial  power.     They  extended  it, 

wisely  as  we  now  know,  to  controversies  between  the  States,  making  the 

Supreme  Court  an  international  tribunal  and  showing  the  possibility  of  an 

international  court  of  justice  for  the  Society  of  Nations. 

'  Ibid.,  p.  626. 

•  Ibid. 

'  tbid.,  p.  619.    Session  of  August  25th. 


t:i 


it 


.«! 


XIII 


^' 


PROTOTYPE  OF  A  COURT  OF  INTERNATIONAL 

JUSTICE 

The  usual  rcmediri  between  nations,  war  and  diplomacy,  beint  precluded  by  the  federal 
union,  tt  is  necessary  that  a  judicial  remedy  should  supply  their  place.  The  Supreme  Court 
of  the  reilcration  dispenses  mtrrnational  law,  and  is  the  first  great  example  of  what  is  now 
one  of  the  most  prominent  wants  of  civilized  society,  a  real  International  TribunaL  {John 
Sluart  Mill,  CoHsiderations  on  Rtpristnlative  CovemmtHi,  iS6t,  pp.  JO}-so6.) 

Sitting,  as  it  were,  as  an  international,  as  well  as  a  domestic  tribunal,  we  apply  Federal 
law,  state  law.  atul  international  law,  as  the  exigencies  of  the  particular  case  may  de- 
mand. .  .  .  {Chief  Juilice  Fuller  tn  Kansas  v.  Colorado,  i8i  United  Slates,  itj,  146-147, 
decided  111  190-!.) 

The  importance  which  the  framert  of  the  Constitution  attached  to  such  a  tribunal,  for 
the  purpose  of  preserving  internal  tranquillity,  is  strikingly  manifested  by  the  clause  which 
gives  this  court  jurisdiction  over  the  avereign  States  which  compose  this  Union,  when  a 
controversy  arises  between  them.  Instead  of  reserving  the  right  to  seek  redress  for  injus- 
tice from  another  State  by  their  sovereign  powers,  they  have  bound  themselves  to  submit 
to  the  decision  of  this  court,  and  to  abide  by  its  judgment.  And  it  is  not  out  of  place  to 
say,  here,  that  experience  has  demonstrated  that  this  power  was  not  unwisely  surrendered 
by  the  States :  for  in  the  time  that  has  already  elapsed  since  this  Government  came  into 
existence,  several  irritating  and  angry  controversies  have  taken  place  between  adjoining 
States,  in  relation  to  their  respective  boundaries,  and  which  have  sometimes  threatened  to 
end  in  force  and  violence,  but  for  the  power  vested  in  this  court  to  hear  them  and  decide 
between  them.  (Chief  Justice  Taney  in  Ableman  v.  Booth,  il  Howard,  306,  SI9,  decided 
in  iHiS.) 

Those  states,  in  their  highest  sovereign  capacity,  in  the  convention  of  the  people  thereof : 
on  whom,  hy  the  revolution,  the  prerogative  of  the  crown,  and  the  transcendent  power  of 
parliament  devolved,  in  a  plenitude  unimpaired  by  any  act,  and  controllable  by  no  authority, 
adopted  the  constitution,  by  which  they  'cspectively  made  to  the  United  States  a  grant  of 
jiidicial  power  over  controversies  between  two  or  more  states.  (Mr.  Justice  Baldmn  in 
Rhode  Island  v.  Massachusetts,  li  Peters,  657,  720,  decided  in  183S.) 

So  that  the  practice  seems  to  be  well  settled,  that  in  suits  against  a  state,  if  the  state 
shall  refuse  or  neglect  to  appear,  upon  due  service  of  process,  no  coercive  measures  will 
be  taken  to  compel  appearance ;  but  the  complainant,  or  plaintiff,  will  be  allowed  to  proceed 
ex  parte.  (Mr.  Justice  Thompson  in  Massachusetts  v.  Rhode  hland,  12  Peters,  755,  761. 
decided  in  tSjS.) 

From  the  character  of  the  parties,  and  the  nature  of  the  controversy,  we  cannot,  without 
committing  great  injustice,  apply  to  this  case  the  rules  as  to  time,  which  govern  Courts  of 
Equity  in  suits  between  individuals.  .  .  .  But  a  case  like  this,  and  one  too  of  so  many 
years  standitiR.  tlie  parties,  in  the  nature  of  things,  must  be  incapable  of  acting  with  the 
promptness  of  an  individual.  .Agents  must  he  employed,  and  much  time  may  be  required 
tn  search  for  historical  documents,  and  to  arrange  and  collate  them,  for  the  purpose  of 
presenting  to  the  Court  the  true  grounds  of  the  defence.  (Chief  Justice  Taney  in  Rhode 
island  V.  Massachusetts,  13  Peters,  23,  24,  decided  in  1839.) 

The  case  to  t)e  determined  is  one  of  peculiar  character,  and  altogether  unknown  in  the 
ordinary  course  of  judicial  proceedings.  It  is  a  question  of  boundary  between  two  sov- 
ereign states,  litigated  in  a  (Tourt  of  Justice,  and  we  have  no  precedents  to  guide  us  in  the 
forms  and  modes  of  pro-ecdings,  hy  which  a  controversy  of  this  description  can  most 
conveniently,  and  with  justice  to  the  parties,  be  brought  to  a  final  hearing.  The  subject 
was   however   fully  considered   at   January   term,   1838.    ...    It   was  then   decided,  that 

266 


f 


i 


pmmrrvpi:  of  a  court  or  inteinational  justice 


267 


thr  rult.  and  prictire  or  the  Court  of  Ch«nccry  ihould  govern  in  conducting  thii  luit 
to  a  final  iiiuc.   ... 

.1,  ^":  '"„•  «°""°»f"y  where  two  lovereign  itatet  are  contestinu  the  boundary  hefwren 
incm,  It  will  l)e  the  duty  of  the  Court  to  mould  the  rules  of  Lliancery  pr.-ictice  and  pleadiiiK. 
in  »uch  a  manner  as  to  bniiR  this  case  to  a  dual  hfariHK  .m  ii«  rial  mcriti  It  is  too 
important  in  its  character,  and  the  interests  concerned  are  t.K)  great,  to  be  decided  upon 
il"*'*  «««'""»'  principles  of  Chancery  pleading.  (Chief  Justict  laiiey  in  Hhadt  Itland 
V.  MatsathuMUt.  14  l'*ltu,  no,  jjo/,  deeidtd  m  1S40.) 

„..^J!t^  !}  *°"'**  *!';"' .!''*!  r""". '•L'  constitution  was  framed,  and  when  this  law  wa* 
passed.  It  was  conhdently  U^licved  that  a  sense  of  justice  and  of  mutual  interest  would 
uisure  a  faithful  execution  of  this  constitutional  provision  by  the  Executive  of  every  State 
for  every  State  had  an  equal  interest  in  the  execution  of  a  compact  absolutely  essential  to 
their  peace  and  well  being  in  their  internal  concerns,  as  well  as  members  of  the  Union 
Kence,  the  use  of  the  words  ordinarily  employed  when  an  undoubted  obligation  is  required 
♦o  be  performed,     it  shall  be  his  duty.  -s     «^» 

But  if  the  Governor  of  Ohio  refuses  to  discharge  this  duty,  there  is  no  power  delegated 
to  the  Oeneral  Government,  either  through  the  Judicial  Department  or  any  other  depart- 
ment, to  use  any  coercive  means  to  compel  him.  (thief  Justice  Taney  in  Kentuckv  v. 
Dtnnuon,  Governor  of  Ohio.  i4  Howard,  66,  109-10,  decided  m  i860.) 

The  opinioni  referred  to  will  make  it  clear  that  both  States  were  afforded  the  amplest 
<yportunity  to  be  heard  and  that  all  the  propositions  of  law  and  fact  urged  were  given 
the  most  solicitous  consideration,    indeed,  it  is  also  true  that  in  the  course  of  the  contro- 
versy, as  demonstrated  by   the  opinions  cited,  controlled  by  great  consideration   for  the 
character  of  the  parties,  no  technical  rules  were  permitted  to  frustrate  the  right  of  both 
A   J    *'*'  '?,  ^I**      ■  *"■'  merits  of  every  subject  deemed  by  them  to  be  material. 
And.  controlled  by  a  like  purpose,  before  coming  to  discharge  our  duty  in  the  matter  now 
before  us,  we  have  searched  the  record  in  vain  for  any  indication  that  the  assumed  exist- 
ence ol  any  error  committed  has  operated  to  prevent  the  discharge  by  West  Virginia  of 
le  obligations  resulting  from  the  judgment  and  hence  has  led  to  the  proceeding  to  enforce 
ihe  judgment  which  is  now  before  us.    (Chief  Juitict  White  in  Virginia  v.  ll'etl  riramia, 
i46  Cmted  Stales,  i6s,  390.  decided  in  1918.) 

,  That  judicial  power  essentially  involves  the  right  to  enforce  the  results  of  its  exertion 
IS  elementary.  .  .  And  that  this  applies  to  the  extrtion  of  such  power  m  controversies 
Detween  Mates  as  the  result  of  the  exercise  of  oritjinal  jurisdiction  conferred  upon  this 
court  bv  the  Constitution  is  therefore  certain.  The  manv  cases  in  which  such  contro- 
versies t)etween  States  have  been  decided  in  the  exercise  of  original  jurisdiction  make  thii 
!f."',i    ?i-"'c."':.  V-ll .-"."'.''""?  ^°^  contending  to  the  contrary  because,  in  all  the  cases 

under 

K'%n    K-.      ..'J    •!.    >'     i  '    j"*^'. ■   — .«   e»"-»-    v*v»    x\j    Liiv    :,a>ti«..       11119    iiiusi    uu   UhIcSS    it 

can  De  said  tdat.  bccau-  a  di»rtrine  has  been  universally  recognized  as  being  beyond  dis- 
pute and  has  henr.-  t^.th-erto.        »ver>'  case  from  the  foundation  of  the  Government,  been 


cited,  the  States  against  which  judgments  were  rendered,  conformably  to  their  duly 
the  Lonstitiilion.     ult  ..tarily  respected  and  gave  effect  to  the  same.    This  must  be  un 
can  be  said  that,  bccau-   a  di»rtrine  has  been  universally  recognized  as  being  beyon 
pute  and  has  henr.-  t^.th-rto.        »ver>'  case  from  the  foundation  of  the  Government,  ueen 
•^fP'J'' ,»"'•  aPI";        "   haj  -hat   fact  alone  now  become  a  fit  subject   for   dispute. 

(tntefJuitice  Ilk  .,  m  i  «  i    H  est  yirginia.  146  United  States,  565,  igi-t.  decided 

in  1910.) 


The  complainant,  the  Co>:.r 
that  the  decree  entertil  I  ,    ih, 
the  complainant  and   again' 
thereon  from  July  1st,  1015 
with  one  haif  of  the  costs 
provided  in.  and  in  acciir<v.i 
of  West  Virginia  approver 
West  Virginia's  part  of  thi 
day  of  January,  one  thousan. 
of  the  Supreme  Court  cf  the  I 
for  the  issuance  of  bonds  and  t; 
said  judgment."     (AcknouUui./tK 
of  Ihe  Unilfd  Stales.  March   1 
Virginia.  138  United  States.  *j. 


inwealth  of  ^■l^ginia.  now  comes  and  informs  the  Court 

curt  m  thi'    ..use  on  the  14th  of  June.  191S,  in  favor  of 

defendat       lot    the  sum  of  $12,393,929.50,   with   interest 

■  •  il  at  1       rate  of  five  per  centum  per  annum,  together 

""       Hy  -atisfied  and  paid  by  the  defendant  in  the  manner 

-h       ■;    -rms  of  the  Act  of  the  Legislature  of  the  Stale 

'I'll,  entitled  "  ,\n  Act  providing  for  the  payment  of 

if  the  commonwealth  of  Virgini.-!  .rior  to  the  first 

:i--  fired  and  sixty-one,  as  ascertained  by  the  judgment 

1  Statfs  and  adjusted  by  the  two  States,  and  to  provide 

raising,  and  appropriation  of  money  for  the  payment  of 

!      :iis faction  of  Decree  filed  in  Ihe  Supreme  Court 

in  ih,-  case  of  SteUe  of  Virgima  v.  Stale  of  West 

■i  111  ,  v/j.) 


111 


CHAFTER  XIII 


^V^'^i 


QumioM 

AriMng 

Under 

TrcatiM 


FKOTOTYPE  OF  A  COUHT  OP  INTERNATIONAL  JUSTICE 

The  cflfect  of  Mr.  Rutledge's  motion  to  have  the  judicial  power  of  the 
United  States  extended  to  treaties  made  or  to  be  made  under  their  authority 
was  to  endow  the  Supreme  Court  with  the  power  and  the  duty  to  pass  upon 
the  question  of  treaties  and  to  aKertain  and  fix  the  oUigation  of  the  general 
government  and  of  the  States  by  judicial  decision  of  the  Supreme  Court.  A 
minor  but  not  unimportant  improvement  of  the  draft  of  August  6th  should 
be  mentioned,  which  was  made  in  the  busy  and  fruitful  .«ession  of  August 
27th.  By  an  inspection  of  the  draft  it  will  appear  that,  by  the  first  section 
of  A  tide  11,  "  the  Judicial  Power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court;"  and  in  section  3  thereof,  "the  jurisdiction  of  the 
Supreme  Court "  is  very  naturally  and  properly  defined.'  This  slight  varia- 
tion of  language,  which  might  be  supposed  to  affect  the  meaning,  was  not 
lost  upon  Mr.  Madison.  He  suggested,  with  the  unanimous  approval  of  the 
Convention,  that  the  wording  should  be  the  same  in  each  case,  and  therefore 
"  the  Judicial  Power  "  of  the  United  States  was  substituted  for  "  the  juris- 
diction of  the  Supreme  Court."  ' 

There  was  an  added  reason  for  the  change  which  could  be  advanced  if 
any  justification  be  needed,  in  that  the  first  section  expressly,  and  the  second 
section  impliedly,  spoke  of  inferior  courts  to  which  the  judicial  power  of 
the  United  States  was  to  extend.  Therefore  this  expression  was  really 
more  accurate  than  the  former.  It  will  also  be  observed  from  the  draft  of 
the  Committee  of  Detail  that,  while  the  jurisdiction  of  the  Supreme  Court, 
or,  as  amended,  the  judicial  power  of  the  United  States,  is  extended  to  con- 
troversies between  two  or  more  States,  controversies  regarding  "  territory 
or  juri.sdiction  "  are  excepted  trom  the  juri.sdiction  of  the  Supreme  Court. 
It  was  intended,  however,  that  they  should  be  subject  to  the  judicial  power, 
although  the  procedure  to  be  followed  was  diflFerent. 

The  reason  for  the  exception  is  not  difficult  to  find,  for,  in  this  as  in 
other  matters,  the  members  of  the  Convention  had  in  mind,  and  indeed 
under  their  very  eyes,  the  Articles  of  Confederation,  whidi  they  retained  in 
spirit  if  not  in  letter  whenever  it  seemed  possible  or  advisable  to  do  so.  The 
ninth  of  these  articles  declared  that  "  the  United  States  in  Congress  assem- 

"  Documentary  History  of  the  Constitution,  Vol.  Ill,  p,  454.    Session  of  August  6th. 
Ibid.,  p.  (.27. 

268 


roOTOTYPB  OF   A   COUiT  OF   INTCSNATtONAL    jr»TlC« 


269 


bled  shall  also  be  the  last  resort  on  appeal  in  .i!I  Hspru-s  \r<\  iWfirTtnca  now 
subsisting  or  ttiat  hereafter  may  arise  beturfn  two  or  iiidu  Sf-'tt  in.ri 
ing  boundary,  jurisdiction,  or  any  other  cause  whatever."  and  jvidcd  tlut 
they  should  be  settled  by  means  of  tempt)rary  commissions  to  be  appointed 
by  the  Congress  upon  the  general  consent  of  the  agents  of  the  States  in  co-- 
troversy,  or.  in  default  of  their  agreement,  from  a  list  made  up  of  three 
persons  from  each  of  the  thirteen  States  represente<i  in  the  Congress.  1  ne 
Committee  of  Detail  had  preserved  this  procedure,  restricting  it.  however, 
to  disputes  and  controversies  "  respecting  jurisdiction  or  territory."  and  sub- 
stituting the  Senate  of  the  Constitution  for  the  Congress  of  tlie  Confedera- 
tion. In  substance  and  in  spirit  the  ninth  article  of  the  Confederation  was 
preserved,  as  in  the  Senate  the  Sutes  were  to  be  eq  illy  represented,  as  they 
had  l)cen  under  the  Confederation;  so  that  the  representatives  of  the  States 
as  such  were  to  take  the  necessary  steps  for  the  settlement  of  disputes  and 
differences.  The  long  section  of  the  articles  and  of  t..'  proposed  Constitu- 
tion was  replaced  by  the  very  simple  provision  that  "  the  judicial  power 
shall  extend  ...  to  controversies  bet'veen  two  or  more  States."  In  this 
change  lies  the  promise  of  an  international  judiciary,  for  controversies 
involving  questions  of  law  and  equity  between  two  or  more  States  of  the 
American  Union  were  to  be  decided  by  judges,  not  compromised  by  arbiters, 
just  as  controversies  between  members  of  the  society  of  nations  can  and  one 
day  will  be  so  decided  involving  "  the  principles  of  equity  and  right  on  which 
are  based  the  security  of  States  and  the  welfare  of  peoples,"  to  ([uote  the 
preamble  to  the  Hague  Convention  for  the  pacific  settlement  of  iiitcrnatiunal 
disputes." 

As  this  point  is  so  interesting  and  so  important,  and  as  the  Supreme  Court 
is  the  prototype  of  an  international  tribunal,  the  discussion  of  tlie  matter  in 
the  Convention  is  set  forth  m  full  as  found  in  Mr.  Madison's  Notes  under 
date  of  August  24th: 

Sect:  2  &  3  of  art:  IX  being  taken  up. 

M'.  Rutlidge  said  this  provision  tor  deciding  controversies  between  the 
States  was  necessary  under  the  Confederation.  Imt  will  he  rendered  unnec- 
essary hy  the  National  Judiciary  now  to  be  established,  and  moved  to  strike 
it  out. 

Doc',  fohnson  2'^'^.  the  Motion. 

M'.  Sherman  concurred ;  so  did  M'.  Dayton. 

M'.  Williamson  was  for  postponing  instead  of  striking  out.  in  order  to 
consider  whether  this  might  not  be  a  good  provision,  in  cases  where  the 
Judiciary  were  interested  or  too  cl"sely  connected  with  the  parties — 

M'.  Chorum  had  douhts  as  to  striking  out.  The  Judges  might  be  con- 
nected with  the  States  being  parties — He  was  inclined  to  think  the  mode 

'Statutes  at  Largt,  36:2201. 


^1^ 


270 


THE   UNITED  STATES:   A   STXTOY   IN    INTERNATION AF.   ORGANIZATION 


f»*}"  ■•^\t 


How  Political 

lucjtions 
-Iccome 
Judicial 


W' 


Arbitration 
Cunsidered 


proposed  in  the  clause  would  be  more  satisfactory  than  to  refer  such  cases 
to  the  Judiciary — 

On  the  Question  for  postponing  the  2^.  and  3''.  Section,  in  passed  in  the 
negative. 

N.  H.  ay.  Mas",  no.  Con«.  no.  N.  J.  no.  Pen*,  abs'.  Del.  no.  M-".  no. 
V*.  no.  N.  C.  ay.  S-  C  no.  Geo.  ay. 

Mr.  Wilson  urged  the  striking  out,  the  Judiciary  being  a  better  pro- 
vision. "^ 

On  Question  for  striking  out  2  &  3  Sections  Art :  IX. 

N.  H.  ay.  Mas :  ay.  O.  ay.  N.  J-  ay.  P».  abs'.  Del-  ay.  M^.  ay.  V».  ay. 
N.  C.  no.  S.  C.  ay— Geo.  no.> 

We  are  indeed  fortunate  to  have  even  this  brief  account  of  one  of  the 
silent  revolutions  in  the  thought  and  therefore  in  the  practn..-  of  mankind, 
for,  with  the  lessons  of  history  before  them  and  with  no  exact  precedent 
for  their  action,  the  members  of  the  Convention  recognized  that  the  submis- 
sion of  a  dispute  between  nations  to  a  judicial  tribunal  makes  of  it  a 
juridical  question,  and  therefore  a  proper  subject  of  judicial  power,  as 
pointed  out  by  the  agent  of  their  creation  in  the  controversy  between  Rhode 
Island  and  Massachusetts  (12  Peters,  755)  decided  in  1838. 

It  is  to  be  observed,  in  the  first  place,  that  the  Convention  regarded  some 
method  as  "  necessary  "  for  settling  the  disputes  between  the  States.  With- 
out a  court  some  such  provision  as  that  of  the  Articles  of  Confederation 
was  "  necessary ;  "  but  the  establishment  of  the  court  made  the  provision  of 
the  articles  "  unnecessary,"  as  pointed  out  by  Mr.  Rutledge,  in  that  there 
would  Ije  an  agency  ready  and  apt  to  decide  the  disputes  without  the  delay 
involved  in  creating  one  for  the  case  when  it  arose  and  which,  as  a  tem- 
porary tribunal,  would  go  out  of  being  when  the  dispute  had  been  settled. 
The  provision  of  the  articles  was  therefore  unnecessary,  and  the  gospel  of 
the  new  dispensation  was,  as  Mr.  Wilson  urged,  "  a  better  provision." 

It  is  further  to  be  observed  that  the  motion  in  this  case  was  made  by  a 
distinguished  lawyer,  later  to  be  Chief  Justice  of  the  Supreme  Court  of  the 
United  States,  and  that  the  recommendation  for  the  judicial  method  came 
from  Mr.  Wil.son,  then  a  leader  of  the  Pennsylvania  bar  and  destined  to  be 
a  Justice  of  the  Supreme  Court.  It  appeared  to  these  men  to  go  without 
argument  that  controversies  of  a  legal  and  equitable  nature  between  States 
could,  and  therefore  should,  be  decided  by  a  court,  which  for  purposes  of 
justice  was  to  be  the  agent  created  by  the  States  in  which  they  consented  to 
be  sued,  not  an  agency  of  government  superior  to  the  States  and  imposed 
upon  thein  from  above.  It  will  also  be  observed  that  some  of  the  delegates 
felt  that  the  method  of  arbitration  could  still  profitably  be  resorted  to,  as  it 
was  later  to  be  pointed  out  by  a  distinguished  French  statesman  at  the 
Second  Hague  Peace  Conference,  that  nations,  while  willing  to  submit  their 
^Documentary  History  of  the  Constitution,  Vol.  UI,  pp.  607-8. 


PROTOTYPE  OF  A   COURT  OF   INTERNATIONAL  JUSTICE 


271 


controversies  of  a  judicial  nature  to  an  international  court,  might  prefer  to 
submit  their  disputes  of  a  diflferent  nature,  or  in  which  the  judicial  was 
slight  in  comparison  to  the  political  element,  to  arbitration.' 

If  the  matter  had  stopped  here,  only  a  part  of  the  jurisdiction  exercised 
by  the  United  States  in  Congress  assembled  under  the  ninth  of  the  Articles 
of  Confederation  would  have  been  vested  in  the  Supreme  Court.  The  ninth 
article  submitted  to  the  Conjjress  "  all  controversies  concerning  the  private 
right  of  soil  claimed  under  different  grants  of  two  or  more  States  "  to  "  be 
finally  determined  as  near  as  may  be  in  the  same  manner  .  .  for  decid- 
ing disputes  respecting  territorial  jurisdiction  between  different  States." 
This  clause,  forming  the  third  section  of  the  ninth  of  the  Articles  of  Con- 
federation, was  retained  in  the  proposed  draft  of  the  Constitution,  which 
likewise  formed  the  third  section  of  the  ninth  article,  with  the  substitution 
of  the  Senate,  with  its  equal  representation  of  the  States,  for  the  Congress, 
and  is  thus  worded  in  the  latter  document : 

All  controversies  concerning  lands  claimed  under  different  grants  of 
two  or  more  States,  whose  jurisdictions,  as  they  respect  such  lands  shall 
have  been  decided  or  adjusted  subsequent  to  such  grants,  or  any  of  them, 
shall,  on  application  to  the  Senate,  be  finally  determined,  as  near  as  may  be, 
in  the  same  manner  as  is  before  prescribed  for  deciding  controversies 
between  different  States.* 

Therefore,  in  the  session  of  the  27th.  three  days  after  the  Supreme  Court 
was  vested  with  jurisdiction  of  controversies  between  the  States,  Mr. 
Sherman  proposed  a  further  extension  of  judicial  power  by  investing  the 
court  with  the  exercise  of  the  power  contained  in  the  ninth  of  the  Articles 
of  Confederation,  carried  over  to  the  ninth  article  of  the  proposed  Consti- 
tution. As  recorded  by  Mr.  Madison,  "  Mr.  Sherman  moved  to  insert  after 
the  words  '  between  Citizens  of  different  States '  the  words,  '  between  Citi- 
zens of  the  same  State  claiming  lands  under  grants  of  different  States ' 

according  to  the  provision  in  the  ninth  art:  of  the  Confederation — which 
was  agreed  to  nem:  con:'"  As  thus  modified,  this  section  of  the  ninth 
article  is  embodied  in  the  Constitution.  * 

A  further  and  not  the  least  interesting  modification  of  the  proposed  Con- 
stitution was  likewise  made  in  the  session  of  the  27th,  in  which  the  Supreme 
Court  was  vested  with  the  jurisdiction  which  the  Congress  had  possessed 

'  "  Thus  it  is  seen  that  the  cases  for  which  the  permanent  tribunal  is  possible  are  the 
same  as  those  in  which  compulsory  arbitration  is  acceptable,  being,  generally  speaking. 
cases  of  legal  nature.  Whereas  political  cases,  in  which  the  nations  should  be  allowed 
freedom  to  resort  to  arbitration,  are  the  very  ones  in  which  arbitrators  are  necessary  rather 
than  judges,  that  is.  arbitrators  chosen  at  the  time  the  controversy  arises."  Discourse  of 
M.  Leon  Bourgtois.  James  Brown  Scott,  The  Rcfoi'l^  to  the  Hague  Conferences  of  iSoo 
and  1907,  (1918),  pp.  239-40. 

'Documentary  History,  Vol.  iii.  p.  452.     Session  of  August  6th. 
/oid.,  p.  627. 


I! 


272  THE   UNITED  STATES:  A  STITDY  IN   INTERNATIONAL  ORGANIZATION 


■^*Tr  ^f ' 


Original  and 

Apellate 

Jurisdiction 


lapeadimeot 


under  the  Confederation.  A  step  in  advance  of  this  was  taken  by  the  Con- 
vention upon  Mr.  Madison's  suggestion  "agreed  to  nem.  con.,"  that  after 
the  words  "  controversies  between  the  States,"  the  clause  should  be  inserted 
"to  which  the  U-  S-  slull  be  a  party.'"  The  Supreme  Court  was  the 
appropriate  court  in  which  the  United  States  should  appear  as  a  litigant,  and 
it  was  natural  that  the  right  of  the  Government  to  avail  itself  of  this  tri- 
bunal should  be  expressly  stated;  although  it  might  have  been  plausibly  con- 
tended that  the  United  States,  as  such,  would  be  included  within  the  clause 
extending  the  judicial  power  "  to  controversies  between  two  or  more 
States."  The  Convention  either  did  not  consider  the  United  States  as  a 
State  within  the  meaning  of  ♦his  clause,  or  deemed  it  preferable  to  separate 
the  united  from  the  individual  States.  Had  it  not  done  so,  and  if  the  United 
States  were  not  included  within  the  clause,  it  would  have  followed  that  the 
United  States  could  be  sued  in  the  Supreme  Court  as  well  as  appear  as  a 
plaintiff  in  a  controversy  with  a  State  to  which  it  was  a  party,  whereas  the 
United  States  would  or  would  not  be  a  party  defendant  under  Mr.  Madison's 
motion  as  the  Supreme  Court  should  interpret  the  clause  when  a  case  involv- 
ing it  was  presented  for  its  consideration.  In  any  event,  it  is  important  to 
note  the  difference  of  language  used  with  respect  to  the  United  States  and 
to  the  States  as  such  in  these  two  clauses,  as  the  Supreme  Court  has  held 
that,  by  virtue  of  this  wording,  a  State  may  be  made  defendant  at  the 
instance  of  a  State  because  of  the  consent  by  them  given  in  the  Constitu- 
tion, whereas  the  United  States,  by  the  clause  in  question,  is  authorized  to 
make  use  of  the  Supreme  Court  in  a  controversy  to  which  it  is  a  party,  but 
not  to  be  made  a  defendant  without  its  special  consent,  as  the  terms  of  the 
clause  imply  authorization,  not  consent. 

The  second  clause  of  the  second  section  of  the  third  article  of  the  Con- 
stitution as  finally  adopted  is  designed  to  give  effect  to  the  grant  of  judicial 
power  and  to  assign  some  of  the  subjects,  by  reason  of  their  importance,  to 
the  original  jurisdiction  of  the  Supreme  Court,  and,  in  all  other  matters 
included  in  the  article,  to  give  the  Supreme  Court  appellate  jurisdiction 
"  with  such  Exceptions,  and  under  such  Regulations  as  the  Congress  shall 
make  "  in  order  that  there  may  be  one  law  for  the  United  States,  one  for 
the  States,  and  one  for  the  citizens  thereof,  in  as  far  as  what  may  be  called 
federal  questions  are  concerned.  The  impeachment  of  officers  of  the  United 
States  fell  within  the  original  jurisdiction  of  the  Supreme  Court  in  the 
draft  of  the  Committee  of  Detail  as  reported  on  August  6th.''  This  question 
was,  how  iver,  ultimately  removed  from  the  judicial  to  the  legislative  branch 
of  the  Government  of  the  Union.     The  requirement  that  the  Chief  Justice 

'  Documentary  History,  Vol.  iii,  p.  626. 
•  Ibid.,  p.  4S4.    Article  XI,  Sec.  3. 


PHOTOTYPE  OF  A  COl'RT  OF  INTERNATIONAL  JUSTICE 


273 


of  the  Supreme  Court  should  preside  in  the  Senate  during  the  trial  of  per- 
sons impeached  by  the  House  of  Representatives  shows  that,  although 
removed  from  the  court,  the  procedure  was  nevertheless  to  be  judicial,  mak- 
ing of  the  Senate,  when  so  sitting,  a  high  court  of  impeachment.  With  this 
further  exception,  the  grant  of  original  jurisdiction  in  the  Constitution 
stands  as  reported  by  the  Committee  of  Detail,  with  slight  changes  of  lan- 
guage later  made  by  the  Committee  on  Style. 

The  balance  of  the  clause,  however,  was  changed  in  substance  as  well  as 
in  form  by  the  Convention.  Doubt  having  arisen  in  the  mind  of  Gouverneur 
Morris  as  to  whether  the  appellate  jurisdiction  of  the  Supreme  Court  already 
extended  to  matters  of  fact  as  well  as  law  and  to  cases  of  common  as  well 
as  civil  law,  Mr.  Wilson,  speaking  for  the  Committee,  of  which  he  was  a 
member,  said : 


!  ij 


The  Committee  he  believed  meant  facts  as  well  as  law  &  Common  as 
well  as  Civil  law.  The  jurisdiction  of  the  federal  Court  of  Appeals  had  he 
said  been  so  construed.' 

In  order  to  clear  up  all  doubt  on  this  point,  Mr.  Dickinson  moved,  and  his 
motion  was  unanimously  agreed  to,  "  to  add  after  the  word  '  appellate '  the 
words  '  both  as  to  law  &  fact.'  "  '  and  on  the  following  day,  the  28th,  to 
improve  the  English,  the  phrase  "  supreme  Court "  was  substituted  for  the 
expression  "  it  "  before  "  appellate  jurisdiction."  '  As  thus  amended,  the 
appellate  jurisdiction  of  what  we  should  today  call  the  federal  courts  was 
agreed  upon  in  the  session  of  the  27th  of  August,  with  the  exception  of  cer- 
tain formal  changes  proposed  by  the  Committee  on  Style. 

How  were  the  judges  to  be  appointed  for  the  Supreme  Court  and  the 
inferior  courts  which  Congress  might  be  minded  to  establish?  In  the  first 
section  of  Article  IX  of  the  draft  as  reported  by  the  Committee  of  Detail, 
it  was  provided  that  "  the  Senate  of  the  United  States  shall  have  power  to 
make  treaties,  and  to  appoint  Ambassadors,  and  Judges  of  the  supreme 
Court."  *  But  in  the  discussions  on  the  appointment  of  the  judges,  which 
have  already  been  set  forth,  the  method  suggested  by  Mr.  Gorham,  although 
then  defeated,  was  eventually  adopted  and  applied  to  appointments  generally, 
by  virtue  whereof  they  are  made  by  the  executive,  by  and  with  the  consent 
of  the  second  branch,  that  is  to  say,  the  Senate. 

On  the  23d  of  August  the  clause  relating  to  the  appointment  of  Ambas- 
sadors and   judges  came  before  the   Convention,  but  no  agreement   was 

'  Ibid.,  p.  627. 
•  Ibid. 

'Ibid.,  p.  628. 
'Ibid.,  p.  451. 


1 


fe'l 


ll 


i*C' 


--■5 


lfj*% 


Powen  of 
the  Court 


274  THE  UNITED  STATES:  A  STUDY  IN    INTEKNATIONAL  ORGANIZATION 

reached,  other  than  to  refer  the  matter  again  to  the  Committee  of  Detail. 
This  body  did  not,  however,  present  a  report;  therefore  the  question  went 
over  to  the  Committee  on  Unfinished  Portions,  which  considered  the  whole 
subject  of  appointments  as  properly  before  it  and  reported  the  following 
method,  approved  by  the  Convention  on  the  4th  of  September  with  the  addi- 
tion of  "  Consuls  "  after  the  word  "  Ministers  " : 

The  President  by  and  with  the  advice  and  Consent  of  the  Senate,  shall 
have  power  to  make  Treaties;  and  he  shall  nominate  and  by  and  with  the 
advice  and  consent  of  the  Senate  shall  appoint  ambassadors,  and  other 
public  Ministers,  Judges  of  the  Supreme  Court,  and  all  other  Officers  of 
the  U-  S-,  whose  appointments  are  not  otherwise  herein  provided  for.  But 
no  treaty  shall  be  made  without  the  consent  of  two  thirds  of  the  members 
present.' 

The  framers  of  the  Constitution  were  much  wortied  as  to  the  method  of 
appointing  judges  and  as  to  the  tenure  of  the  judges  when  appointed.  They 
were  creating  the  judiciary  equal  in  rank  and  dignity  to  the  legislative  and 
executive,  and  as  we  think  of  even  greater  importance,  for  great  as  are  the 
powers  of  the  other  departments  they  are  nevertheless  defined  and  interpreted 
by  the  judiciary,  and  in  cases  of  excess  of  the  Constitutional  grant  they  are 
declared  by  the  men  of  the  law  to  be  null  and  void.  To  do  this,  they  should 
be  independent  of  the  legislative  and  executive,  "  to  the  end,"  to  cite  again 
the  Constitution  of  Massachusetts,  "  it  may  be  a  government  of  laws,  and 
not  of  men."  Fortunately  for  the  administration  of  justice  and  the  prevalence 
of  law  in  these  United  States,  their  efforts  were  crowned  with  complete 
success. 

But  the  judiciary  would  not  have  stood  out  as  the  most  prominent  feature 
of  the  American  system,  and  the  judges  could  not  have  rendered  the  great 
services  which  they  have  to  the  American  people,  were  it  not  for  the  second 
clause  of  the  sixth  article  of  the  Constitution,  which  defined  the  sense  in 
which  the  judicial  power,  extended  by  the  third  article  to  all  cases  in  law 
and  equity  arising  under  the  Constitution,  the  laws  and  treaties  of  the 
United  States,  was  to  be  understood.  It  is  therefore  necessary  to  state  the 
action  upon  Article  VIII  of  the  draft  of  the  Constitution  reported  by  the 
Committee  of  Detail,  inasmuch  as  it  declared  the  Constitution,  the  acts  of 
Congress  made  in  pursuance  of  the  Constitution,  and  the  treaties  negotiated 
under  the  authority  of  the  United  States,  the  supreme  law  of  the  land,  bind- 
ing as  of  course  the  governments.  Federal  and  State,  and  all  officers,  State 
and  Federal,  political  or  judicial. 

It  was  clearly  the  intention  of  the  large  States,  as  indicated  in  the  Vir- 


'  Documnttnrv  Uistory.  Vol   III,  pp.  669-70. 


PROTOTYPE  OF  A  COURT  OF  INTERNATIONAL  JUSTICE 


275 


ginian  plan,  and  of  the  smaller  States,  as  set  forth  in  the  New  Jersey  plan, 
to  make  the  laws  of  the  new  Union  within  the  grant  of  power  superior  to 
the  laws  of  the  States  as  such.  As  amended  by  the  Committee,  the  sixth 
article  of  the  Virginian  plan  included  treaties  as  well.     Thus: 

The  Nat'.  Legislature  ought  to  be  empowered  ...  to  negative  all 
laws  passed  by  the  several  States  contravening  in  the  opinion  of  the 
National  Legislature,  the  articles  of  Union,  or  any  treaties  subsisting  under 
the  authority  of  the  Union.' 

This  was  even  more  explicitly  stated  in  the  sixth  article  of  the  New  Jersey 
plan,  reading  as  follow^ ; 

Res"*,  that  all  Ac  s  of  the  U.  States  in  Cong',  made  by  virtue  L  in  pur- 
suance of  the  powers  hereby  &  by  the  articles  of  confederation  \ested  in 
them,  and  all  Treaties  made  &  ratified  under  the  authority  of  the  U.  States 
shall  be  the  supreme  law  of  the  respective  States  so  far  forth  as  those  Acts 
or  Treaties  shall  relate  to  the  said  States  or  their  Citizens,  and  that  the 
Judiciary  of  the  several  States  shall  be  bound  thereby  in  their  decisions, 
any  thing  in  the  respective  laws  of  the  Individual  States  to  the  contrary 
notwithstanding;  and  if  any  State,  or  any  body  of  men  in  any  State 
shall  oppose  or  prevent  y*.  carrying  into  execution  «uch  acts  or  treaties, 
the  federal  Executive  shall  be  authorized  to  call  forth  ye  power  of  the 
Confederated  States,  or  so  much  thereof  as  may  be  necessary  to  enforce 
and  compel  an  obedience  to  such  Acts,  or  an  Observance  of  such  Treaties.' 

The  Convention,  however,  did  not  approve  this  article.     On  July  17th 
the  following  proposal  was  before  the  Convention: 

To  negative  all  laws  passed  by  the  several  States  contravening  in  the 
opinion  of  the  Nat:  Legislature,  the  articles  of  Union,  or  any  treaties  sub- 
sisting under  the  authority  of  ye  Union.' 

After  much  debate  and  discussion,  this  proposition  was  adopted  by  a  v(  " 
of  seven  to  three  of  the  States.  Immediately  thereupon,  and  without  a 
break  in  the  proceedings,  Luther  Martin  of  Maryland  moved  the  following 
resolution,  which  was  unanimously  agreed  to  although  it  closely  followed 
the  New  Jersey  plan  which  had  been  rejected  in  all  its  parts : 

That  the  Legislative  acts  of  the  U.  S.  made  by  virtue  &  in  pursuance  of 
the  articles  of  Union,  and  all  treaties  made  &■  ratified  under  the  authority 
of  the  U.  S.  shall  be  the  supreme  law  of  the  respective  States,  as  far  as 
those  acts  or  treaties  shall  relate  to  the  said  States,  or  their  Citizens  and 
inhabitants — &  that  the  Judiciaries  of  the  several  States  shall  be  bound 
thereby  in  their  decisions,  any  thing  in  the  respective  laws  of  the  individual 
States  to  the  contrary  notwithstanding.* 

*  Ibid.,  p.  121.    Session  of  June  13th. 

"  Ibid.,  pp.  127-8.    Session  of  June  ISth. 
•Ibid.,  p.  351. 

•  Ibid.,  p.  353. 


''  y 


J* ' 


■h  ^ 


^m*  Mh 


276  THE  UNITED  STATES  :   A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

The  resolution  proposed  by  Mr.  Martin  and  adopted  by  the  Convention 
was  referred  to  the  Committee  of  Detail,  which  reported  its  Article  VIII 
of  the  proposed  Constitution.  On  August  23  the  Convention  took  up  this 
irticle  as  reptirted  hv  the  Committee  of  Detail,  and,  upon  Mr.  Rutledge's 
motion,  it  was  amended  and  unan.  nously  adopted  in  the  following  form : 

This  Constitution  &  the  laws  of  the  U.  S.  made  in  pursuance  thereof, 
and  all  Treaties  made  under  the  authority  of  the  U.  S.  shall  be  the  supreme 
law  of  the  several  States  and  of  their  citizens  and  inhabitants;  and  the 
Judges  in  the  several  States  shall  be  bound  thereby  in  their  decisions,  any 
thmg  m  he  Constitutions  or  laws  of  the  several  States,  to  the  contrary 
notwithstanding.' 


The 

Suprtme 
Ijw  of  the 
Land 


Mr.  Martin's  resolution  made  acts  of  Congress  within  the  grant  of  the 
Constitution  and  the  treaties  negotiated  by  the  United  States  not  merely  the 
laws  of  the  United  States  but  of  each  State  of  the  Union,  in  so  far  as  the 
acts  or  treaties  relate  to  the  States.  Mr.  Rutledge's  amendment  added  the 
"Constitution"  and  struck  out  the  qualifying  clause  regarding  the  States, 
with  the  result  that  the  Constitution,  the  laws  of  the  United  States  made  in 
pursuance  of  the  Constitution,  and  the  treaties  of  the  United  States  likewise 
made  in  pursuance  of  the  Constitution  became  the  supreme  law  of  each  of 
the  States  to  the  same  extent  as  if  the  Constitution  had  l)een  drafted  by 
Conventions  held  within  the  States  instead  of  ratified  by  Conventions  spe- 
cially called  for  such  purpose  within  the  States. 

But  the  article  as  amended,  while  it  no  doubt  pleased  Mr.  Madison,  in 
that  the  Constitution,  laws  and  treaties  of  the  United  States  became  the  laws 
of  the  States  as  if  each  had  been  made  in  each  instance  by  each  of  the  States, 
did  not  please  him  in  the  matter  of  treaties,  as  he  was  set  upon  making  the 
clause  so  clear,  its  language  so  precise  and  its  meaning  so  unmistakable,  as 
to  give  to  the  treaty  paramount  effect,  in  order  to  enable  British  creditors 
to  recover  their  debts  in  accordance  with  the  treaty  of  1783  with  Great 
Britain  recognizing  the  independence  of  the  United  States.  In  a  letter 
written  to  Mr.  Randolph,  dated  April  4,  1787,  a  month  and  more  before  the 
meeting  of  the  Convention,  he  had  said  : 


But  does  the  establishment  of  the  treaty  as  a  law  provide  certainly  for 
the  recovery  of  debts?  Ought  it  not  [tol  be  paramount  to  law;  or  at  least 
to  be  one  of  those  laws  which  are,  in  my  opinion,  beyond  repeal,  from  being 
combined  with  a  compact?" 


'  Documentary  History.  Vol.  iii.  p.  600. 

•  M.  I)    Cotuvav.  Omitted  Chapters  of  History  Disclosed  in  the  Life  and  Pollers  of 
Edmund  Handolth.,  1888,  p.  72. 


PtOTOTYPE  or   A  COUKT  OF  INTERNATIONAL  JUSTICE 


277 


Therefore,  on  August  25th.  two  days  after  the  adoption  of  Mr.  Rutledge's 
amendment,  Mr.  Madison,  seconded  by  Gouverneur  Morris,  proposed  to 
insert  after  "  all  treaties  made  "  the  phrast  "  or  which  shall  be  made."  with 
the  following  result: 

And  all  treaties  made,  or  whirh  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land. 

In  view  of  the  letter  to  Mr.  Randolph,  written  before  the  meeting  of 
the  Convention,  we  can  understand  the  purpose  which  Mr.  Madison  had  in 
mind;  but  it  was  not  enough  that  Mr.  Randolph  knew  it.  it  was  necessary 
that  the  meml)ers  of  the  Convention  should  know  it  and  share  it.  Therefore, 
in  proposing  the  amendment,  he  said,  as  he  records  in  his  Notes : 

This  insertion  was  meant  to  obviate  all  doubt  concerning  the  force  of 
treaties  preexisting,  by  making  the  words  "  all  treaties  made  "  to  refer  to 
them,  as  the  words  inserted  would  refer  to  future  treaties.' 

As  thus  amended,  the  article  was  referred  to  the  Committee  on  Style,' 
which  reported  it  back  to  the  Convention  in  its  present  form,  making  the 
Constitution,  the  acts  of  Congress  made  in  pursuance  thereof,  and  treaties 
of  the  United  States  "  the  supreme  law  of  the  land  "  instead  of  "  the  supreme 
law  of  the  respective  States," — an  expression  which  no  doubt  seemed  to 
them  to  be  a  difference  of  form  but  not  of  substance.  It  appears  that  this 
particular  phrase  was  one  with  which  the  men  of  affairs  of  the  day  were 
familiar,  inasmuch  as  eight  Constitutions  of  the  States  referred  to  "  the  law 
of  the  land,"  a  ninth  to  "  the  laws  of  the  land  " ;  and  that  the  Articles  of 
Confederation  were  considered  part  of  "  the  law  of  the  land  "  of  each  State. 
It  further  appears  that  the  treaty  with  Great  Britain  recognizing  the  inde- 
pendence of  the  States  and  its  provisions  were  stated  to  be  part  of  the  "  laws 
of  the  land  of  each  of  the  States  "  in  resolutions  unanimously  passed  by  the 
Congress  of  the  Confederation  on  March  21,  1787,  on  the  eve  of  the  Con- 
vention, and  in  the  Federal  letter  addressed  by  the  Congress  on  April  13, 
1787,  advocating  the  repeal  of  acts  of  the  State  inconsistent  with  the  terms 
of  that  treaty.'  These  details,  unimportant  in  themselves,  have  an  added 
interest  if  it  be  borne  in  mind  that  four  of  the  five  members  of  the  Com- 
mittee on  Style,  to  which  the  Constitution  was  referred  for  its  finishing 
touches,  were  members  of  the  Congress  which  had  adopted  the  resolutions 
and  addressed  the  Federal  letter  to  the  States.     Indeed  the  content  of  the 


'  DncumcKlary  History,  Vol.  III.  p.  619. 

'  This  Comni.tice  was  composed  of   Messrs.  Johnson,  Hamilton,  Morris.   Madison,  and 
King 

'Journals  of  the  American  Congress,  1823.  Vol.  IV.  pp.  735-8. 


278 


THK   UNITKU  STATU:  A  XTUDY    IN    INTERNATIONAL  ORGANIZATION 


resolutions  may  have  been  responsible  for  the  form  of  the  clause.  It  is  at 
least  in  conformity  with  the  relation  created  between  the  Government  of 
the  Union,  on  the  one  hand,  and  the  States,  on  the  other,  in  the  matter  of 
treaties.    The  resolutions  are  therefore  quoted : 


#*|''*i 


r- 


Resolved,  That  the  legislatures  o'  the  several  states  cannot  of  right 
pass  any  act  or  acts,  for  interpreting,  explaining,  or  construing  a  national 
treaty  or  any  part  or  clause  of  it;  nor  for  restraining,  limiting,  or  in  any 
manner  impeding,  retarding,  or  counteracting  the  operation  and  execution 
of  the  same,  for  that  on  being  constitutionally  made,  ratified  and  published, 
they  become  in  virtue  of  the  confederation,  part  of  the  law  of  the  land, 
and  are  not  only  independent  of  the  will  and  power  of  such  legislatures, 
but  also  binding  and  obligatory  on  them. 

Resolved,  That  all  such  acts  or  parts  of  acts  as  may  be  now  existing 
in  any  of  the  states,  repugnant  to  the  treaty  of  peace,  ought  to  be  forth- 
with repealed,  as  well  to  prevent  their  continuing  to  be  regarded  as  viola- 
tions of  that  treaty,  as  to  avoid  the  disagreeable  necessity  there  might 
otherwise  be  of  raising  and  discussing  questions  touching  their  validity  and 
obligation. 

Resolved,  That  it  be  recommended  to  the  several  states  to  make  such 
repeal  rather  by  describing  than  reciting  the  said  acts,  and  for  that  purpose 
to  pass  an  act  declaring  in  general  terms,  that  all  such  acts  and  parts  of 
acts,  repugnant  to  the  ireaty  of  peace  between  the  United  States  and  his 
Britannic  majesty,  or  any  article  thereof,  shall  be,  and  thereby  are  repealed, 
and  that  the  courts  of  law  and  equity  in  all  causes  and  questions  cognizable 
by  them  respectively,  and  arising  from  or  touching  the  said  treaty,  shall 
decide  and  adjudge  according  to  the  true  intent  and  meaning  of  the  same, 
any  thing  in  the  said  acts  or  parts  of  acts  to  the  contrary  thereof  in  any  wise 
notwithstanding.* 


This  is  not  the  place  to  consider  the  origin,  nature  and  the  duty  of 
judges  to  declare  acts  of  Congress,  constitutions  and  statutes  of  the  States 
null  and  void  in  so  far  as  they  are  contrary-  to  the  Constitution  of  the  United 
States,  which  is  also  the  Constitution  of  each  of  the  States  and  therefore 
their  fundamental  law.  It  is  nevertheless  advisable  to  mention  the  way  in 
which  the  judicial  power  of  the  United  States,  extended  to  cases  in  law  and 
equity  arising  under  the  Constitution,  acts  of  Congress  and  treaties,  taken 
in  connection  with  the  clause  of  the  Constitution  under  consideration, 
operates  and  renders  the  use  of  force  against  the  States  a  stranger  to  the 
American  system. 

It  was  admitted  on  all  sides  that  the  authority  of  the  United  States 
within  the  sphere  of  its  grant  by  the  States  should  prevail  within  the  States, 
because  the  grant  made  it  the  law  of  each  of  the  States.  That,  however, 
was  not  enough,  because  it  would  not,  on  that  account,  take  precedence  of 
another  or  subsequent  law  of  the  State.     By  making  the  Constitution,  the 

*  Journals  nf  the  American  Congress.  1823,  Vol.  vi.  pp.  729-30.    Session  of  March  21st. 


FIOTOTYPE  or  A  COU«T  OF  INTMNATIONAL  JU8T1CB 


279 


acts  of  Congress  passed  in  pursuance  thereof,  and  the  treaties  of  the  United 
States  negotiated  in  accordance  with  its  terms,  the  supreme  law  of  the  land 
of  each  of  the  States,  the  Constitution,  the  acts  of  Congress,  and  the  treaties 
became  laws  of  each  of  the  States,  just  as  if  they  had  originated  in  each  and 
had  been  made  for  each  and  by  each  for  itself. 

Admitting  this  to  be  so,  what  was  to  be  done  to  the  United  States 
if  a  State  framed  a  constitution  or  passed  a  law  inconsistent  with  the  Con- 
stitution? The  national  legislature  ought  to  possess  the  power  "to  nega- 
tive all  laws."  said  Mr.  Madison,  supposing  him  to  have  been  the  author 
of  the  Virginian  plan,  "  passed  by  the  several  States,  contravening  w  the 
opinion  of  the  National  Legislature  the  articles  of  Union;  and  to  call  forth 
the  force  of  the  Union  ag*'.  any  member  of  the  Union  failing  to  fulfil  its 
duty  under  the  articles  thereof."  '  But  a  little  reflection  caused  him  to 
renounce  the  plan  of  coercing  the  States,  which  he  did  on  the  floor  of  the 
Convention  within  two  days  of  its  first  session,'  ultimately  and  with  much 
misgiving  relying  upon  the  intervention  of  the  courts  to  prevent  a  difficulty 
which  he  foresaw  might  present  itself.  Again,  what  was  to  be  done  with 
an  act  of  Congress  itself  contrary  to  the  terms  of  the  Constitution?  Have 
it  passed  upon  by  a  council  of  revision,  of  which  judges  of  the  Supreme 
Court  should  be  members,  said  Mr.  Madison,  and  he  and  his  friends  clung 
to  each  of  these  proposals  with  dogged  pertinacity. 

But  the  Convention  was  wiser  than  any  of  its  members,  including  even 
the  father  of  the  Constitution.  Admitting  the  necessity  of  coercion,  the 
enlightened  body  preferred  the  coercion  of  law  to  the  coercion  of  force,  and 
in  entrusting  the  interpretation  of  the  laws  to  the  courts  and,  in  last  resort, 
to  the  Supreme  Court  of  the  United  States.  As  a  step  toward  the  desired 
goal,  the  judicial  power  of  the  United  States  was  extended  to  all  cases  in 
law  and  equity  arising  under  the  Constitution,  acts  of  Congress  passed  in 
pursuance  thereof,  and  treaties  made  according  to  its  terms.  These  were 
declared  not  merely  the  law  of  each  of  the  States  but  the  supreme  law  of 
the  States,  and  this  extension  of  the  judicial  power  enabled  any  person  in 
any  State  of  the  Union  injured  in  his  person  or  property  to  test  the  validity 
of  the  interpretation  given  to  the  Constitution,  the  validity  of  the  law  or  of 
the  treaty  in  a  court  of  justice  as  a  case  in  law  or  equity,  as  it  arose  under 
one  or  the  other  heading.  In  the  course  of  the  trial  the  Constitution  would 
necessarily  be  interpreted  and  applied  by  the  court.  The  act  of  Congress 
or  treaty  would  be  declared  to  be  either  in  accord  with  the  Constitution  or 
contrary  to  it.  In  the  latter  case  the  act  or  treaty  would  be  held  null  and 
void,  and  the  transaction  whereof  the  litigant  complained  would  be  illegal 

'  Documentary  History,  Vol.  Ill,  p.  18.    Session  of  May  29th. 
'  ibid.,  pp.  ii-A.    Session  of  May  3Ist. 


The 
iincUon 


Question  of 

Sll 


Coercion 
of  Law  V. 
Coercion 
o(  Force 


IfV^?^ 


280  THE  UNITED  ITATEt :  A  iTUDY   IN   INTElNATrONAL  OtOANUATION 

and  the  injury  to  person  and  property  redressed.  The  incorrect  interpreta- 
tion of  the  CiJnstitution  of  the  Union  or  of  the  States,  the  treaty  itself,  and 
the  statute  of  Congress  or  of  the  States,  would  Iw  set  aside  in  the  sense  that 
it  would  not  be  regarded  by  the  court  as  a  justification  for  the  act  committed 
under  its  cover.  Repeated  acts  of  a  like  nature  would  be  declared  illegal 
by  the  courts,  so  that,  to  all  intents  and  purposes,  the  interpretation  of  the 
Constitution  of  the  United  States,  upon  which  reliance  was  based,  would  be 
disapproved,  and  the  act  or  treaty  involved  declared  to  be  to  all  intents  and 
purposes  invalid.  The  purposes  which  Mr.  Madison  and  his  friends  had  in 
mind  would  be  accomplished  without  the  intervention  of  force  and  the  State 
itself  would  not  be  involved,  inasmuch  as  the  suit  was  against  an  individual 
of  the  State  claiming  under  its  authority  as  a  defense  for  his  action.  This 
process  and  its  results  have  never  been  more  adequately  or  more  happily 
described  than  by  Sir  Henry  Maine  in  the  following  passage,  to  be  found 
in  his  essay  on  the  Constitution  of  the  United  States: 

The  Supreme  Court  of  the  United  States,  which  is  the  American  Fed- 
eral institution  next  claiming  our  attention,  is  not  only  a  most  interesting 
but  a  virtually  unique  creation  of  the  founders  of  the  Constitution.  The 
functions  which  the  Judges  of  this  'Jourt  have  to  discharge  umlcr  provi- 
sions of  the  Constitution  arise  primarily  from  its  very  nature.  The  Execu- 
tive and  Legislative  authorities  of  the  United  States  have  no  powers,  except 
such  as  are  expressly  conferred  on  them  by  the  Constitution  itself;  and, 
on  the  other  hand,  the  several  States  are  forbidden  liy  the  Constitution  to 
do  certain  acts  and  to  pass  certain  laws.  What  then  is  to  be  done  if  these 
limitations  of  power  are  transgressed  by  any  State,  or  by  the  United 
States?  The  duty  of  annulling  such  usurpations  is  confided  by  the  Th'y.i 
Article  of  the  Constitution  to  the  Supreme  Court,  and  to  such  inferior 
Courts  as  Congress  may  from  time  to  time  ordain  and  establish.  Rut  this 
reniarkahle  powiT  is  capable  only  of  indirect  exercise;  it  is  called  into 
activity  by  "  cases,"  by  actual  controversies,  to  which  individuals,  or  States, 
or  the  United  States,  are  parties.  The  point  of  unconstitutionalitv  is  raised 
by  the  arguments  in  such  controversies ;  and  the  decision  of  tlie  I  nnrt  fol- 
lows the  view  which  it  takes  of  the  Constitution.  .'\  declaration  of  uncon- 
stitutionality, not  provoked  by  a  definite  dispute,  is  unknown  to  the  Supreme 
Court. 

The  success  of  this  experiment  has  blinded  men  to  its  novelty.  There 
is  no  exact  precedent  for  it,  either  in  the  ancient  or  in  the  modern  world. 
The  builders  of  Constitutions  have  of  course  foreseen  the  violation  of  con- 
stitutional rules,  Iiut  they  have  generally  sought  for  an  exclusive  remedy, 
not  in  the  civil,  but  in  the  criminal  law,  through  the  impeachment  of  tlie 
oflfender.  And,  in  popular  governments,  fear  or  jealousy  of  an  authority 
not  directly  deletjated  by  the  people  has  too  often  caused  the  difficulty  to  be 
left  for  settlement  to  chance  or  to  the  arbitrament  of  arms.  "  |e  nc  pense 
pas,"  wrote  De  Tocqueville,  in  his  "  Democratic  en  An^erique,"  "  que 
jusqu'  .n  present  aucuiie  nation  du  nioncle  ait  constitue  le  pouvoir  judiciaire 
de  la  nieme  maniere  que  les  Americains."  * 

'  Maine.  Popular  Government,  1886,  pp.  217-8, 


mOTOTVPE  or  A   COURT  or   INTERNATIONAL   JUs  TCE 


281 


The  coercion  ,)f  law  was  consciously  preferred  to  the  <  ircion  of  force, 

and  the  members  of  the  Convention  were  themselves  awai  of  the  success 

of  their  lalxirs.    Thus,  Mr.  Madison,  in  a  kttiT  alrcatly  quc  ed  to  his  friend 
Thomas  Jefferson  after  the  close  of  the  Convention,  said : 

A  voluntary  observance  of  the  federal  law  by  all  the  ncnilwrs  could 
never  Iw  liopt-d  for.  A  cuDi/'K/.tii'r  niu'  could  cviiit'ntly  m  cr  lie  reduced 
to  practice,  and  if  it  could,  involved  e(|ual  calutintics  tu  the  innocent  and 
the  K>''''y'  'he  necessity  of  a  military  force,  both  obnoxious  and  dangerous, 
and,  in  general,  a  scene  resembling  much  more  a  civil  war  th,.n  tlip  admin- 
istration of  a  regular  (iovernment.  Hence  was  embraced  t\  ■  alternative 
of  a  Government  which,  instead  of  operatiuR  "ii  the  St.itps,  ';!.  Aild  operate 
without  their  intervention  on  the  individuals  mg  them. 


But  the  most  notable  and  far-reaching  statet 
quoted  of  Mr.  Oliver  Ellsworth,  a  delegate  ft 
Senator  under  the  Constitution  which  he  ha 
Justice  of  the  Supreme  Court  of  the  I'nitcx,   -i 
Connecticut,  called  to  ratify  the  Constitution,    ^ 
appropriately  be  said,  the  language  of  advoca** 
mentator  and  of  prophet : 


hat  Hkewist  i  ' 

nnect  tut,  »!.• 

to      !-aine  .« 

li\  t       1  'n\i 

iJJswor  h  used 

,,,(  ni  sta-  e»!  lan, 


viously 

1  l)e  a 

,  Chief 

'i"n  of 
t  may 

t    C«,>IH- 


This  Constitution  defines  the  extent  ot     ip  powe' 
ernment.      If   the   general   legislature    shi>ii,i(j   nt   an 
limits,   til"    iudicial   department   is  a  c^-n-r  tution;!!     ; 


K(   a  law 
■iial  ji'  vvi 

iMa.J.       : 

:>on  the 


^L-S    V       I 

uvidu 

frame  v, 

jistitution 

it  provi' 


>■' 


States  ).,  !  their  powers,  if  they  n, 

does  not  ai,  it  is  void ;  and  the  ju 

who,  to  secuii  impartiality,  are  li>  ' 

it  to  be  void.     ()u  the  other  band,  it  tV. 

they  make  a  law  which  is  a  usurpatin- 

law  is  void ;  and  iiprif,'ht,  independcir 

however,  if  the  United  States  and  lli 

want  to  tight,  they  m.ay  do  it,  and  : 

prevent  it.     It  is  sufficient  for  this  i 

theiii  under  a  necessity  of  contendini: 

against  it.     But  perhaps,  at  some  time  or  othi 

the  states  may  nse  against  the  general  govcrnmiiu 

if  all  the  state    combine,  if  all  oppose,  the  wln.n    «■ 

bers,  but  the  ■  leasure  which  is  opposed  to  the      •  h   of 

prove  abortiv      .    .    . 

Hence  we  see  how  necessary  for  the  Union  is  a  ocrcive  pr  lijile  No 
man  pretends  the  contrary :  we  all  see  and  feel  this  necessity  i'lic  only 
question  is.  Shall  it  be  a  coercion  of  law.  or  a  coercion  of  arm  There  is 
no  other  possible  alternative.  Wliere  will  those  wl-  >  oppose  :.  coercion  of 
law  come  out?  Where  will  they  end?  .X  necessii  v  consequence  of  their 
principles  is  a  war  of  the  states  one  against  the  otlier.  I  am  for  coercion 
by  law — that  coercion  which  acts  only  upon  delinquent  individuals.  This 
Constitution  does  not  attempt  to  coerce  sovereign  bodies,  states,   in  their 

t  The  ll-rifitt-j,  of  James  Madisc-':,  Hunt  cd..  Vol.  V,  p   19.    Lcftor  .-.f  0-t--.!cr  2-i,  1787, 


♦K  general  gov 
■■cr'  ip  tl;,,  ir 
i  tl  ,  United 
'■  iT-.titntion 
n,  :«-nal  judpcs, 
I--'  >i.  •--  ill  declare 
A  fhor  limits,  if 
i:"^  -nnient  the 
!  .')e  so.  Still, 
i  ^ua-rel,  if  they 
icnt  II  p(js>il)ly 
•  ir  from  laying 
iMinable  check 
U  l<e  a  contest; 
IS  d  .  take  place, 
•■at  ii|i  the  mem- 
the  [■ 'ople   will 


k   i 


382         TBI  UHITID  RATBt:  A  tTUOY  IN   IirTUNATIONAL  OIOANIZATION 

politktl  Mjwcitv.  No  coercion  is  applicable  to  luch  bodies,  but  that  of  an 
arnwd  force.  If  we  ihould  attempt  to  execute  the  laws  of  the  Union  by 
lendinK  an  armed  force  against  a  delinquent  state,  it  would  involve  the  good 
and  the  bad.  the  mnocent  and  guiUy.  in  the  same  calamity. 

But  this  legal  coercion  single*  out  the  guilty  individual,  and  puniihea 
Wm  for  breaking  tht  laws  of  the  Union.' 

It  is  obvious  that  the  Society  of  Nations  will  be  confronted  with  problems 
similar  to  if  not  identical  with  the  problems  which  faced  the  framers  of  the 
American  Constitution  when  they  set  about  to  create  a  Supreme  Court  of  the 
Union  whicli  they  were  rendering  more  perfect.  The  Convention  creating  the 
closer  union  of  the  Society,  like  the  Constitution  creating  the  more  perfect 
union  of  American  States,  will  need  to  be  interpreted,  and  the  experience  of 
the  United  States  shows  that  this  can  best  be  done  by  a  permanent  court  of 
the  union. 

General  conventions  or  special  treaties  to  which  States  of  the  Society  of 
Nations  are  parties,  will  need  to  lie  interpreted ;  but.  here  again,  the  experience 
of  the  American  Union,  with  its  tribunal,  should  be  enlightening. 

A  court  of  the  Society  will  necesv  jr  \x  a  court  of  limited  jurisdiction ; 
but,  with  the  growth  of  confidence  in  lat  tribunal,  its  jurisdiction  will  be 
enlarged  in  the  way  pointed  out  by  the  Supreme  Court  itself;  that  is  to  say. 
by  an  agreement  to  submit  to  the  tribunal  questions  hitherto  considered  ,x)liti- 
cal,  questions  which,  by  the  very  act  of  submission,  become  judicial. 

Gradually,  as  the  result  of  experience,  the  usefulness  of  the  court  will 
be  thus  enhanced.  The  possibility  of  the  substitution  of  law  for  physical 
force  may  dawn  upon  the  statesmen  of  the  modern  world  just  as  it  dawned 
upon  the  framers  of  the  American  Union,  and  the  conduct  of  nations,  like 
the  cnn.luct  of  States  of  the  American  Union,  be  guided  and  eventually' con- 
trolled by  the  principles  of  justice. 

Coercion  there  must  l)e,  for  nations,  as  shown  by  experience,  are  even 
less  inclined  than  individuals  to  brook  control ;  but  the  choice  is,  and  it  is 
believed  the  choice  must  always  be,  either  for  the  coercion  of  law,  or  for 
the  coercion  of  arms. 

*  Elliot.  DtbaUs,  Vol.  II,  pp.  196-7. 


XIV 
THE  ADMISSION  OF  NEW  STATES 


No  principle  of  general  law  it  more  univerially  acknowledged,  than  tiie  perfect  equality 
ol  natiotn  Kuiiia  and  Gini\a  have  e<|ual  rights.  It  rcsulti  (r.im  thu  equality,  that  no  one 
can  rightfully  innioje  a  rule  on  another.  Each  legi»late»  for  it»elf,  but  it»  legulation  can 
openle  on  itself  alone.  A  right,  then,  which  ii  veitcd  in  all,  l<y  the  (.onstni  of  all,  can 
be  di  eated  only  by  conient ;  and  this  trade,  in  which  all  have  participated,  must  remain 
lawf'il  to  tho«e  who  cannot  be  induced  to  relinquiih  it.  A»  no  nation  can  prcKribe  a  rule 
for  ihera,  none  can  make  a  law  of  nation! ;  and  thi«  traffic  remaint  lawful  to  tho»e  whote 
go<  :rnments  have  not  forbidden  it.  (Chitf  Jutlic*  MarthaU  in  Iht  Anttlofe,  lo  iy  htaton, 
M,  lit,  decidtd  in  iSiJ.) 

Section  13.    And  for  extending  the  fundamental  principles  of  civil  and  religious  liberty, 
which  form  the  bans  whereon  these  rcpublica.  their  laws  and  constitutions,  are  erected; 
to  fix  and  establish  those   principles  as  the  basis  of   all   laws,  constitutions,  and  govern- 
ments  which  forever  hereafter  shall  be  formed  in  the  said  territory ;  to  provide,  also,  for 
the  establishment  of   Stales,  and  permanent  government   therein,  and   for   thiir  admission 
to  a  share  in  the  Federal  councils  on  an  equal  footing  with  the  original  Stales,  al  as  early 
periods  as  may  be  consislent  with  ihe  general  inlerest: 

Section    14.     It   is   hereby  ordained  and   declared,  by  the  authority   aforesaid,  that   the 
following  articles  shall  be  considered  as  articles  of   compact,  between  the  original   States 
and  the  people  and  Slates  in  the  said  territory,  and  forever  remain  unalterable,  unless  by 
common  consent,  to  wit : 

Article  I.    No  person,  demeaning  hinisel*   in  a  peaceable  and  orderly  manner,  shall 
ever  l>e  molested  on  account  of  his  mode  of  worship,  or  religious  sciuiincnts.  in  the 
laid  ternioriis  ....  .  .  ,    ,  . 

Article   II.    The   inhabitants  of   Ihe  said  territory  shall  always  be   entitled  to  the 
benefits  of  the   writs  of  hab.as  crfHS.  and  of  the  trial  by   jury;  of  a  proportionate 
representation  of  the  people  in  the  legislature,  and  of  judicial  proceedings  according  to 
the  course  of  the  common  law.    .Ml  persons  shall  be  bailable,  unless  for  capital  offences, 
where  the  proc'  shall  be  evident,  or  the  presumption  great      All  fines  shall  be  mod- 
erate ;  and  no  cruel  or  unusual  punislimcnts  shall  be  intiicled.    No  man  shall  lie  deprived 
of  his  liberty  or  property,  but  by  the  iudgmenl  of  his  peers,  or  the  hw  of  the  land, 
and  should  the  public  exigencies  make  it  necessary,   for  the  common  pre^.•r^a|lon.  lo 
take  any  person's  property,  or  to  demand  his  particular  services,  full  compensation  shall 
be  made   for  the  same.     And,  in  the   just  preservation  of   rights   ar.d   property,  it   is 
understood  and  declared,  that  no  law  ought  ever  to  be  made,  or  have  force  m  the  said 
territory,  that  shall,  m  any  manner  whatever,  interfere  with  or  affect  private  contracts, 
or  engagements,  bona  fide,  and  without  fraud  previously  formed. 

Article  III.     Religion,  morality,  and  knowledge  being  necessary  to  good  government 
and  the  happiness  ot  mankind,  KhooU  and  the  means  of  education  shall  forever  be 
encouraged.  .   . 

Article  IV.    The  said  territory,  and  the  States  which  may  be  formed  therein,  shall 
forever  remain  a  part  of  this  confederacy  of  the  United  Stales  of  America,  subject  to 
the   Articles  of   Confederation,  and   to   such  alterations  therein   as   shall   be   constitu- 
tionally made;  and  lo  all  the  acts  and  ordinances   of  the  United  Stales  in  Congress 
assembled,  conformable  thereto.  .    .    . 

Article  V.  There  shall  be  formed  in  the  said  territory  not  less  than  three  nor 
niore  than  five  States:  and  the  boundaries  of  the  States,  as  soon  as  VirginiD  shall  alter 
her  act  of  cession  and  consent  to  the  same,  shall  become  fixed  and  esL-iblished  as 
follows,  to  wit :   .    .    . 

And  whenever  anv  of  the  said  States  shall  have  sixty  thousand  free  inhabitants 
therein,  such  State  shall  be  admitted,  by  its  delegates,  into  the  Congress  of  the  I'nitcd 
States,  on  an  equal  footing  with  the  original  States,  in  all  respects  whatever ;  and  shall 

283 


to , 


J  L   - 


E" 


■**)*f44 


284  THE  UNITED  STATES  :  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 

be  at  liberty  to  form  a  ptrmanent  constitution  and  State  government :  Provided  The 
constitution  and  government,  so  to  be  formed,  shall  be  republican,  and  in  conformity 
to  the  principles  contained  in  these  articles,  and,  so  far  as  it  can  be  coiisislenl  with 
the  general  interest  of  the  confederacy,  such  admission  shall  be  allowed  at  an  earlier 
period  and  when  there  may  be  a  less  number  of  free  inhabitants  in  the  State  than 
sixtv  thousand. 

Article  VI.  There  shall  be  neither  slavery  nor  involuntary  servitude  in  the  said 
territory  otherwise  than  in  the  punishment  of  crimes,  whereof  the  party  shall  have 
been  (lu\y  convicted  .Provided  always.  That  any  person  escaping  into  the  sam.,  from 
whom  labor  or  service  is  lawfully  claimed  in  any  one  of  the  original  Stales,  such 
Jugilive  may  be  lawfully  reclaimed,  and  conveyed  to  the  person  claiming  his  or  her 
abor  or  service  as  aforesaid.  {An  Ordinance  for  the  yovernmenl  of  the  terrilorv  of 
''irj»"l<'^'^'<"^/»orihwest  of  the  river  Ohio,  July  13.  1787.  Hevised  Statutes  of  the 
Lmted  Hates,  1S78,  pp.  ij  -16.) 

«;f=f,*"1't,=M  f     f^'*'"'  f'^'"  """^^^  admitted  by  the  Congress  into  this  Union;  but  no  new 
State  shall  be  formed  or  erected  withm  the  jurisdiction  of  any  other  State;  nor  any  State 
be    ormed  by    he  junction  of  two  or  more  Staffs,  or  Parts  of  Stales,  without  the  Consent 
°^  '^,<^  I-egislatures  of  the  Stales  concerned  as  well  as  of  the  Congress 
,    J    .       '.'k"^x  *'^'*  Power  to  dispose  of  and  make  all  needful  Rules  and  Regulations 

re  pecnng  he  Territory  or  other  Properly  belonging  to  the  United  States;  and  nothing  in 
of  anj   l^rtkuhr'si'Me      *"  ''°"^^'"^'^  ^^  ««  Prejudice  any  Claims  of  the  United  States!  or 

uJnFnrl^l  J^"  ^  "'^^"^  States  shall  guarantee  to  every  State  in  this  Union  a  Repub- 
ckilon  nf^hi:  I  "rr'"''  ^'"  ^^^l'  l'^"'^'-.'  ^■'«:h  "f  'hem  against  Invasion;  and  on  Appli- 
^tJf„  ,^  Lec.slature,  or  of  the  Executive  (when  the  Legislature  cannot  be  convened) 
against  domestic  Violence.     (Constitution  of  the  United  Stales.  Article  /F.) 

^Kr^Jw  T  'h's  court  has  found  occasion  to  advert  to  the  effect  of  enabling  acts  as 
affirmative  'egislalion  affecting  the  power  of  new  Slates  after  admission,  there  is  to  be 
found  no  sanction  for  the  contention  that  any  State  may  be  deprived  of  any  of  the  power 
constitutionally  possessed  by  other  Slates,  as  States,  by  reason  of  the  terms  in  which  The 
acts  admitting  them  to  the  Union  have  been  framed 

in  Js!I^F^f'"J',^'"i'°"  ''■°'"  'c''  "''  [I'ollard-s  Lessee  v.  Hagan,  3  Howard,  212,  decided 
if  IfZl  '  '  f^'"  *  "^*  ^'^'/  .''  admitted  into  the  Union,  it  is  so  admitted  with  all 
of  the  powers  of  sovereigntv  and  jurisdiction  which  pertain  to  the  original  Slates  and 
that  such  powers  may  not  be  constilulionally  diminished,  impaired  or  shorn  away  by 
?Z.  fn,  .k"'!-^"'""^'!.'-  ?■■  ^"I?"'3«*"is  embraced  in  the  act  under  which  the  new  Stale 
W^slaTioVa'fle'^"adm',st'n^'  """"^  "°'  "'  '''''  ''"'  ^'^"•"="  "  "'^  -"'«'  "^  congressional 

/rpo"er°;:rtS:m^'i'f  •s'ffe  ^Xl  "'"•'""  °^  '"^  "'-'  '*=''  °^  «-•=—  ^^'^  '^"^^^^ 
I,  J"  ^'■T7-..".''"'P  ^  ^^'='"  ^^-  ^~5'  <^'i'«'  J"^''«  Chase  said  in  strong  and  memorable 
rn"^S'orind:':rru^X''s;rs.'"  ^"  °'  '"  '''°^'^'°"'  '°°'''  '°  '"  undlstructibreTnt! 

!n  /.aik-  County  v    Oregon.  7  Wall    76.  he  said: 

"The  people  of  the   United   States  constitute   one  nation,  under   one  government,  and 


benosuchpoli,icail,ody;7,i;:Uni;VdS.^;;:^ " "^   """"   '"    ""'°"   "'"^  ^°"''' 

To  tins  we  may  add  that  the  constitutional  er|ualily  of  the   States  is  essential   to  the 
harmonious   operation    of   the   scheme    upon    which    the    Republic    was   organim       When 

Lnion   of   the   ConsliUition      (.Ur.   lu.Uice   l.urton  in  Coyle  v.  Smith.  221   United  Slates 
Reports.  559.  570.  573.  579-5S0.  decided  in  1911.)  ^ 

it  h  =^n5""',''!""1"  '"'f"'*^''  to  incorporate  such  of  the  old  states  as  ratified  it:  so 
bv  nine  s.^l  ,?  have  been  admitted :  so  it  must  operate  in  future.  It  was  a  cession, 
*l  ^Z  u  A  '  •'"  "',".'■'1  °i  'heir  separate  power  as  was  necessary  for  federal  purposes 
to  the   body   politic,  called   the  United  States,  the  "  Am-rican   Confederacy,"   "  Republic'' 


THE  ADMISSION  OF  NEW   STATES 


285 


or  "Empire";  as  a  term  of  designation,  including  states  and  territories.  The  consti- 
tution was  the  charter  of  this  federal  corporatioti,  as  those  of  the  different  states  were 
the  charters  of  their  state  corporations  of  government;  each  with  power  to  legislate  accord- 
mg  to  the  terms  of  their  respective  charters,  subject  only  to  that  charter  which  had  been 
made  supreme  for  its  designated  purposes.  {Mr.  Justice  /iuWuiti.  A  General  View  of  the 
Ongm  and  Nature  of  the  Constilution  and  Government  of  the  United  Slates.  1837,  p.  84.) 


■m\ 


■Ik 


CHAPTER  XIV 


THE    ADMISSION    OF    NEW    STATES 


*H*R3 


The 

Northwest 
Ordinance 


As  throwing  very  great  light  upon  the  views  of  public  men  at  the  time 
of  the  Constitution,  the  Act  of  Congress  of  July  13,  1787,  commonly  called 
the  Northwest  Ordinance,'  should  receive  careful  attention,  because  it  was 
passed  at  the  very  time  when  the  Federal  Convention  was  in  session.  Indeed 
some  of  the  members  of  the  Convention  were  obliged  to  absent  themselves 
in  order  to  take  part  in  the  Congress  then  meeting  in  New  York. 

It  is  also  important  to  note  in  this  connection  that  the  ordinance  was 
apprcncd  hy  he  Act  of  August  7,  1789,  passed  by  the  first  Congress  held 
under  the  c.  nstitution,  which  continued  it  in  eiTect.*  The  ordinance  there- 
fore has  the  double  advantage  in  its  favor,  of  being  drafted  and  promulgated 
during  the  session  of  the  Federal  Convention,  and  of  being  r  proved  by 
the  government  installed  under  the  Constitution. 

The  purpose  of  the  Act  is  stated  in  its  title,  "  An  Ordinance  for  the  Gov- 
ernment of  the  Territory  of  the  United  States  north-west  oi  the  river  O'  o," 
that  vast  tract  of  territory  ceded  to  the  United  States  March  1,  l"^^  by 
the  Virginian  delegates  in  Congress,  pursuant  to  the  authorization  of  the 
General  Assembly  of  that  great  State,  December  20,  1783,  by  which  the 
struggling  Confederation  became  possessed  of  an  imperial  domain,  so  that 
if  \'irginia  can  be,  as  it  has  been  called,  the  mother  of  Presidents,  it  can, 
with  equal  propriety,  be  called  the  mother  of  States. 

The  ordinance  consists  practically  of  two  parts,  the  first  of  thirteen  sec- 
tions dealing  with  the  organization  of  a  government  for  the  territory  and 
with  the  details  of  that  government;  the  second  of  six  articles  appended  to 
the  fourteenth  section  in  the  nature  of  a  bill  of  rights  termed  in  the  Act 
itself,  "articles  of  compact,  Ictv.een  the  original  states  and  the  people  and 
states  in  the  said  territory,"  and  to  "  remain  unalterable,  unless  by  common 
consent." 

For  purposes  of  government,  this  vast  tract  was  to  be  considered  as  a 
single  district,  to  be  subject  to  future  division  by  Congress.  A  governor, 
to  reside  in  the  district,  was  to  be  appointed  by  tlie  Congress  for  a  period 
of  three  years  "  unless  sooner  revoked  by  Congress."  There  was  to  be  a 
General  Acsembly  or  a  Legislature,  and  there  was  to  be  a  court.     We  thus 

^Journals  of  the  American  Conqrcss,  Vol.  IV,  pp.  752-4. 
'  U.  S.  Statutes  at  Large,  vol.  15,  p.  50. 

286 


THE  ADMISSION   OF    NEW   STATES 


287 


have  the  three  branches  of  government,  beginning,  however,  with  the  execu- 
tive, instead  of  the  legislative,  as  in  the  Constitution,  apparently  because  the 
executive  was  to  prepare  the  way  for  the  other  branches. 

As  the  judges  were  to  cooperate  with  him  in  this  task,  the  judiciary  is 
mentioned  before  the  creation  of  the  legislature,  and  the  determination  of 
its  functions.  Thus  it  is  stated  in  Section  4  that  "  There  shall  also  be 
appointed  a  court  to  consist  of  three  judges,  any  two  of  whom  to  form  a 
court,  who  shall  have  a  common  law  jurisdiction,  and  reside  in  the  district 
.    .    .  and  their  commissions  shall  continue  in  force  during  good  behaviour." 

The  first  need  of  a  district  was  order,  and  this  was  to  be  brought  about 
through  law.  Therefore  it  was  provided  in  Section  5  that  "  The  governor 
and  judges,  or  a  majority  of  them,  shall  adopt  and  publish  in  the  district 
such  laws  of  the  original  states,  crimmal  and  civil,  as  may  be  necessary,  and 
best  suited  to  the  circumstances  of  the  district,  and  seport  them  to  Congress, 
from  time  to  time."  These  laws  were  to  be  in  force,  unless  disapproved  by 
Congress,  until  the  organization  of  the  General  Assembly,  and  subject  to 
that  body  when  it  should  come  into  being. 

The  governor  was  to  be  commander-in-chief  of  the  militia,  to  appoint 
and  commission  all  Ijelow  the  rank  of  general  officers,  who  were  to  be 
appointed  and  commissioned  by  Congress.  And  the  governor,  prior  to  the 
meeting  of  the  General  Assembly,  was  to  appoint  magistrates  and  other  civil 
officers  in  each  county  or  township,  and  indeed,  to  appoint  all  magistrates 
and  other  civil  officers,  not  otherwise  provided  for,  during  the  continuance 
of  the  temporary  government,  the  duties  and  powers  whereof  were  to  be 
fixed  by  the  General  .Assembly  when  organized.  It  was  also  the  duty  of  the 
governor  to  see  to  the  execution  of  the  laws,  and  to  execute  civil  and 
criminal  processes. 

Whenever  there  were  in  the  district  five  thousand  free  male  inhabitants 
of  full  age,  a  General  Assembly  was  to  be  established,  with  one  representa- 
tive for  every  five  hundred  such  inhabitants  until  the  number  of  represen- 
tatives should  increase  to  twenty-five,  after  which  the  proportion  of 
representatives  was  to  be  regulated  by  the  legislature,  and  the  representatives 
themselves  were  to  be  elected  for  a  period  of  two  years.  The  provisions 
contained  in  Section  11  concerning  the  General  .Assembly  are  of  especial 
interest,  inasmuch  as  they  show  the  Congress  drawing  upon  the  experience 
of  the  colonists,  as  was  to  be  expected,  and  which,  indeed,  could  hardly  be 
obviated.  Thus,  the  General  .Assembly  or  Legislature  was  to  consist  of 
"  the  governor,  legislative  council,  and  a  house  of  representatives."  The 
council  was  to  consist  of  five  members  to  serve  for  a  period  of  five  years, 
unless  sooner  removed  by  Congress,  and  any  three  of  them  were  to  consti- 
tute a  quorum.     The  legislature  was  to  present  the  name  of  ten  persons  to 


i 


in^4y 


Comp.irt 

IV.ipK-     nf 

States  atlii 
N.  Tthwi'Sta 
Tcrilliry 


288  THE  UNITED  STATES".  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

the  Congress  from  whom  that  body  should  choose  five,  and  upon  a  vacancy, 
two  names,  from  which  the  Congress  should  choose  one.  This  process  was 
apparently  to  be  repeated  four  months  before  the  expiration  of  the  five  year 

term.  ...  i   i-i 

The  governor,  appointed  by  the  Congress,  the  legislative  council,  likewise 

appointed  by  the  Congress,  and  the  house  of  representatives  elected  by  the 
inhabitants  having  the  necessary  qualifications,  were  vested  with  the 
authority  to  "  make  laws,  in  all  cases,  for  the  good  government  of  the  dis- 
trict not  repugnant  to  the  principles  and  articles  in  this  ordinance  estalv 
lished  and  declared."  And  it  was  feirther  provided  that  "  all  bills  having 
passed  by  a  majority  in  the  house,  and  by  a  majority  in  the  council "  were 
to  be  referred  to  the  governor  for  his  assent,  and  th.it  "  no  bill  or  legisla- 
tive act  whatever,  shall  be  of  any  force  without  his  absent." 

Here  we  have  the  colonial  governor,  the  governor's  council,  and  the 
assembly  with  the  power  of  veto  of  the  governt.r,  who  was,  in  addition   to 
possess  the  power  "  to  convene,  prorogue  and  dissolve  the  general  assembly 
when  in  his  opinion  it  should  be  expedient. 

Inasmuch  as  the  colonists  maintained  that  taxation  without  representa- 
tion was  tyranny,  the  council  and  house  in  joint  session  and  by  loiiu  ballot 
were  to  elect  a  delegate  to  the  Congress  who  should  have  a  seat  therein 
"with  the  right  of  debating,  but  not  of  voting  during  this  temp.trary  gov- 
ernment" The  members  of  Congress  recognized  the  gravity  ot  the  step 
they  were  taking,  and  the  necessity  of  putting  into  practice  the  .loctnne  they 
had  preached.  Thev  therefore  prefixed  to  the  declaration  of  rights  which 
thev  expresslv  term'ed  a  "compact  between  the  original  states,  and  the 
people  and  states  in  the  said  territory."  w'lat  may  be  called  a  preamble  for 
txten.ling  the  fundamental  principles  of  civil  and  religious  liberty,  which 
form  the  baMS  whereon  these  republics  [apparentlv  the  thirteen  original 
State.!  their  laws  and  constitutions  are  erected:  to  lix  and  establish  those 
principle,  a.  the  basis  of  all  laws,  constitutions  and  governments,  which 
forever  hereafter  shall  be  formed  in  the  said  territory;  to  provide  also  for 
the  establishment  of  states,  and  permanent  government  therein.  an,l  for  their 
admi..itin  to  a  share  in  the  federal  councils  on  ,ui  equal  footing  with  the 
original  states,  at  as  early  periods  as  may  be  consistent  with  the  general 

interest." 

The  first  two  Articles  are  thus  worded : 

Art  i.t  No  person,  dem.aning  himself  in  a  peaceable  and  orderly 
manner,  shall  eveV  be  nioksu.l  on  account  of  his  mode  of  worship  or 
relieious  sentiments,  in  the  said  territory.  ,    „     i    .,„,  k»  ..ntitlpH 

Art  2d  The  inhabitants  of  the  said  territory,  hall  always  be  cntitletl 
to  the  benefits  nf  the  writ  of  habeas  cor^    and  of  the  tr,al  by  -ury;  of 


in;   ADMISSION   OF   NEW   STATES 


289 


a  proportionate  representation  of  the  people  in  the  legislature,  and  of  judi- 
cial  proceedineis  according  to  the  course  of  the  common  law.  All  persons 
Siiall  be  bailahle.  unless  for  capital  otTcnces.  where  the  proof  shall  be  evi- 
dent, or  the  presumption  great.  All  tines  shall  be  moderate;  and  no  cruel 
or  unusual  punishments  shall  be  inflicted.  Xo  man  shall  be  deprived  of  his 
liberty  or  property,  but  by  the  judgment  ot  his  peers,  or  the  law  of  the 
land,  and  should  the  public  exigencies  make  it  necessarv,  for  the  common 
preservation,  to  take  any  j)erson's  properlv,  or  to  dcn'iand  his  particular 
services,  full  compensation  shall  be  made  for  the  same.  And  in  the  just 
preservation  of  rights  and  property,  it  is  understood  and  declared,  that  no 
law  ought  ever  to  be  made,  or  liave  force  in  the  said  territory,  that  shall, 
in  any  manner  whatever,  interfere  with,  or  atTect  priv.ite  contracts  or 
engagements,  bona  fide,  and  without  fraud  previously  formed. 

The  fourth  \rticle  is  interesting,  as  it  subjects  the  territory  to  the  Arti- 
cles of  Confederation,  the  alterations  .nade  therein,  "and  to  all  the  acts  and 
ordinances  of  the  United  States  in  Congress  assembled,  conformable 
thereto." 

This  is  clearly  imperialism :  the  district  subject  to  the  realm ;  to  acts  made 
in  accordance  with  its  Constitution  by  the  framers  thereof.  \ay  more,  the 
inhabitants  and  settlers  within  the  territory  were  "  io  pay  a  part  of  the  fed- 
eral debts,  contracted  or  to  be  contracted,  and  a  proportional  part  of  tiie 
expenses  of  government,  to  be  apportioned  on  them  by  Congress,  according 
to  the  same  common  rule  and  measure,  by  which  apportionments  thereof 
shall  be  made  on  the  other  states."  The  taxes,  however,  to  meet  these  obli- 
gations, were  to  be  raised  by  their  own  legislatures. 

Out  of  this  vast  territory  not  less  than  three,  nor  more  than  tlve  States 
were  to  Ix;  created,  endowed  with  the  right  to  form  a  permanent  Constitu- 
tion and  state  government  whenever  there  were  sixty  thousand  free  inhabit- 
ants in  any  one  thereof,  and  to  be  thereupon  admittetl  into  the  Union  upon 
an  equality  with  the  original  States,  '•  provided  the  constitution  and  govern- 
ment so  to  be  formed,  shall  be  republican,  and  in  c.mformitv  to  the  principles 
contained  in  these  articles."  Indeed,  they  were  to  be  admitted  before  they 
had  sixty  thousand  inhabitants  if  this  could  conveniently  be  done. 

And  in  every  foot  of  this  vast  domain,  it  was  specificallv  provided  in  the 
language  of  Article  6.  to  be  later  incorporated  in  the  thirteenth  amendment 
to  the  Constitution  of  the  United  States,  that:  'There  shall  be  neither 
slavery  nor  involuntary  servitude  in  the  saiil  territory,  otherwise  than  in  the 
punishment  of  crimes,  whereof  the  party  shall  have  l^en  dulv  convicted." 

Here  we  have  the  Congress  sitting  during  the  F.  .ral  Convention,  giv- 
ing its  .approval  to  the  three f,  ,1.1  distribution  of  power,  providinir  tor  the 
government  of  a  vast  domain  which  should  be  broken  i,p  into  territories  and 
in  the  course  of  tune  admitted  as  States  of  the  Union,  specifying  the  fund.a- 
mentals  not  merely  of  law  and  of  order,  but  th.e  principle^  which  should 


i 


e 
h 


290 


THE  UNITED  STATES:  A   STUDY   IN   INTERNATIONAL  ORGANIZATION 


1>lf*'** 


enter  into  a  bill  of  rights  for  the  protection  against  the  central  government 
of  the  inhabitants  of  the  district  or  districts  into  which  the  territory  should 
be  divided,  and  expressed  in  the  form  of  a  compact  between  the  thirteen 
original  States,  whose  representative  the  Congress  was,  with  the  peoples  and 
political  subdivisions  of  the  Northwest  Territory.  The  ordinance  not  only 
throws  light  upon  the  proceedings  of  the  Federal  Convention  and  upon  the 
mental  attitude  of  its  members;  it  is  the  light,  and  it  is  the  mental  attitude. 

The  Constitution  was  devised  primarily  for  the  thirteen  confederated 
States  of  America  by  official  representatives  of  twelve  of  them.  However, 
the  statesmen  who  sat  in  the  Federal  Convention  contemplated  a  Union  com- 
posed of  a  larger  number  of  States,  for  the  Congress  of  the  Confederation 
had.  as  has  been  said,  pledged  the  faith  of  the  United  States  to  create  States 
within  the  northwestern  territory.  Movements  were  elsewhere  on  foot. 
and  indeed  far  advanced,  to  create  States  in  the  outlying  portions  of  Vir- 
ginia and  of  North  Carolina  whith  shortly  resulted  in  the  creation  and  admis- 
sion to  the  Union  of  the  States  of  Kentucky  and  Tennessee. 

The  good  people  of  Vermont  declined  to  be  citizens  of  Massachusetts, 
of  New  Hampshire,  of  New  York,  although  the  latter  two  States  were 
importunate.  V^ermont,  however,  stood  to  its  guns  in  the  literal  sense  of 
that  term,  resisting  persuasion  and  refusing  to  yield  to  force.  It  considered 
itself  to  be  a  separate  and  distinct  State,  organized  it.self  as  such,  provided 
a  Constitution  under  which  it  governed  itself,  feeling  itself  to  be  an  Ameri- 
can State  as  free,  as  sovereign,  and  as  independent  as  those  of  the  Confed- 
eration of  which  it  was  not  a  member;  ready  and  willing,  however,  to  asso- 
ciate itself  with  them  in  the  more  perfect  Union. 

The  Constitution  would  therefore  have  to  provide  for  such  contingencies, 
as  questions  of  this  kind  were  bound  to  arise  and  be  decided  in  Convention. 
No  plan  could  emanate  from  the  Virginian  delegation  that  did  not  contem- 
plate it,  because  the  cession  of  the  claims  of  Virginia  to  the  Northwestern 
Territory  was  conditioned  upon  the  creation  of  States  within  that  vast 
domain  extending  from  the  north  of  the  Ohio  to  the  Mississippi  River. 
Indeed,  the  State  of  Kentucky  was  already  taking  form  and  shape  within 
the  territorial  limits  of  Virginia.  Therefore  the  tenth  and  in  a  less  degree 
the  eleventh  of  Mr.  Randolph's  resolutions  dealt  with  this  question.  The 
tenth  recommended  that  "  provision  ought  to  be  made  for  the  admission  of 
States  lawfully  arising  within  the  limits  of  the  Unitetl  States,  whether  from 
a  voluntary  junction  of  Government  &  Territory  or  otherwise,  with  the  con- 
sent of  a  number  of  voices  in  the  National  Legislature  less  than  the  whole."  * 
The  eleventh  resolution  provided  that  "  a  Republican  Government  &  the 
territory  of  each  State,  except  in  the  instance  of  a  voluntary  junction  of 
'Documentary  History  of  lite  Constitution,  Vol.  Ill,  p.  19.    Session  of  May  29th. 


THE  ADMISSION  OF   NEW  STATES 


291 


Government  &  territory,  ought  to  be  guaranteed  by  the  United  States  to 
each  State."  Mr.  Patterson's  plan  proposed,  on  behalf  of  the  small  States 
preferring  a  revision  of  the  A.ticles  of  Confederation  rather  than  a  new 
scheme  of  government  without  reference  to  them,  that  "  provision  be  made 
for  the  admission  of  new  States  into  the  Union."  ' 

A  feature  thus  appearing  in  the  plans  of  the  large  and  of  the  small 
States  was  one  of  general  import  which  would  require  and  receive  setde- 
ment.  In  this  matter  the  erstwhile  colonies  found  themselves  confronted 
with  the  problem  that  had  faced  the  mother  country  in  its  relation  with  the 
colonies.  And  it  must  be  said  that  some  men  of  the  large  States  looked  at  Attitude 
it  rather  from  the  standpoint  of  the  imperialists  on  the  other  side  o'  the  stat^"* 
water  than  as  statesmen  of  the  new  world  recognizing  the  equal  rights  of 
the  parts  of  Empire  as  well  as  the  rights  of  the  Empire  itself.  The  advo- 
cates of  this  school  apparently  wished  to  center  all  power  in  the  Atlantic 
States  and  to  place  the  new  States  not  merely  in  an  ir'rior  position,  but 
also  to  maintain  them  in  continual  tutelage.  This  attituc.  was  perhaps  most 
frankly  and  bnitally  expressed  by  Gouverneur  Morris,  a  delegate  from  the 
large  State  of  Pennsylvania.  There  were,  however,  notable  exceptions  to 
be  found  among  the  delegates  of  the  larger  States,  especially  George  Mason 
and  James  Madison  of  Virginia,  who  were  as  outspoken  in  their  views  of 
the  equality  of  western  States  as  Gouverneur  Morris  was  against  it. 

If  the  western  boundaries  of  each  of  the  existing  States  had  been  clear, 
definite  and  fixed,  the  question  might  have  been  as  to  whether  the  territory 
to  the  west  of  their  boundaries  was  to  be  acquired  by  the  Union  or  appor- 
tioned among  the  individual  States  as  such.  In  the  latter  case,  even  if  it 
had  Ijeen  possible,  there  would  have  been  difficulty  in  allotting  the  territory 
to  be  obtained  by  each,  as  in  the  instance  of  a  State  situated  as  Rhode 
Island,  cut  off  f'om  all  access  to  the  west  except  through  the  territory  of  its 
neighbors.  The  question  was  complicated  by  the  fact  that  only  the  western 
boundaries  of  New  Hampshire,  Rhode  Island,  New  Jersey,  Pennsylvania, 
Delaware  and  Maryland  were  definite,  using  that  term  in  a  generous  sense, 
whereas  the  remaining  States  of  Massachusetts,  Connecticut,  New  York, 
Virginia,  North  Carolina,  South  Carolina  and  Georgia  claimed  by  charter 
or  irrespective  of  charter  to  extend  indefinitely  to  the  west." 

^  Documentary  History  of  the  Constitution.  Vol.  iii,  p.  12'     Session  of  June  I'^th 
•  The  situation  obtaining  at  this  time  is  thus  described  in  American  History  Leaflets   No 
22,  "  DocumeTits   Illnstrating   State   Land  Claims  and   Cessions,   1776-1802."  ed.   by   Albert 
Bushnell  Har;  and  Edward  ChanninR,  pp.  1-2: 

"  When  the  Rcvrliition  was  impending,  the  boundaries  be.iveen  colonies  had  been  for 
the  most  part  adju^'id;  and  by  the  Proclamation  of  1763  no  governors  were  to  'grant 
warrants  of  survey  or  pass  patents  for  any  lands  beyond  the  heads  or  sources  of  any  of  the 
rivers  which  fall  into  the  Atlantic  Ocean  from  the  west  or  northwest;  or  upon  any  lands 
whatever,  which,  not  having  been  ceded  to  or  purchased  by  us,  as  aforesaid;  are  reserved 
to  the  sam  Indians  or  any  of  them. 


f^ 


^^1 


292 


THE  UNITED  STATES:  A  STUDY  IN   INTEHNATIONAL  ORGANIZATION 


^ 


The  view  of  Maryland,  concurred  in  by  the  States  making  no  claim  to 
the  western  territory,  was  that  it  ought  "  to  be  considered  as  a  common 
property  subject  to  be  parcelled  out  by  Congress  into  free,  convenient  and 
independent  governments,"  inasmuch  as  it  consisted  of  territory  ceded  by 
the  treaty  of  Paris  of  1763  to  the  British  Crown  and  conquered  from  the 
mother  country  by  the  united  efforts  of  the  thirteen  colonies.  Maryland  felt 
so  strongly  on  this  point  that  it  refused  to  enter  the  Confederation  unless 
and  until  the  western  domain  was  secured  for  the  common  benefit. 

Against  this  action  of  its  neighbor,  Virginia  protested,  since  it  claimed 
not  only  the  territory  to  the  South  of  the  Ohio,  from  which  the  State  of 
Kentucky  was  carved,  but  also  the  territory  to  the  northwest  of  the  Ohio 
extending  to  the  Mississippi  River.  The  first  step  toward  a  compromise  was 
taken  by  the  State  of  \cw  York,  which,  on  February  19,  1780,  empowered 
its  delegates  to  concede  for  the  common  benefit  a  portion  of  the  tt.ritory  to 
which  it  laid  claim.'  On  September  6th  of  the  same  year  the  Congress, 
encouraged  by  this  action  on  the  part  of  New  York,  advised  the  States  to 
surrender  a  portion  of  tlieir  claims  to  the  territory  in  question,  inasmuch  as 
without  such  action  the  Union  under  the  Articles  of  Confederation  essential 
"  to  our  very  existence  as  a  free,  sovereign  and  independent  people  "  could 
not  be  estal)!ished:  and  the  States  could  not  hope  to  preserve  their  claims, 
as  to  do  so  would  endanger  the  Confederation,  with  the  consequence  that 
they  would  lose  credit  and  confidence  at  home  and  prestige  and  reputation 
abroad. 

On  the  10th  of  October  the  Congress  took  a  final  step,^  in  as  far  as  any 

"  The  Reveltitimi  hrmicVit  about  several  important  -hanKcs  in  the  territorial  conditions 
of  the  former  colonies.  As  soon  as  the  English  authority  was  extinKUishcd.  the  States 
which  had  once  had  charters  asserted  that  ihe  territory  embraced  by  such  ch.irters  reverted 
to  then).  In  the  second  place,  the  restriction  to  land  east  of  the  Appaladiian  water-slied 
and  outside  Indian  tracts  was  held  to  have  no  more  force.  In  the  third  place,  several 
coniinnnities.  lu.iably  \  erniont.  a-s.rted  lint  tiny  wire  m.  1nns.'er  iiicluded  williin  the  State 
of  whiili  tlicv  had  been  a  pnrt  «hi1e  it  was  still  a  colony.  .And  in  1778  Virginia  troops 
conrpiered  the  Northwest  reiiion.  then  a  p.irt  of  tiie  ICiiglisli  l'ro\  luce  of  Qnebec.  The 
result  wa^  confii'I'n  iuul  ci:>liiii«  of  ir.liii-^ts.  Western  N'evv  N'ork  and  Northern  Penn- 
sylvania were  claiiiu-d  t.v  Massarhnsi tls  :iik1  Connecticut  respectively;  N'ew  York,  Massa- 
cliusetts  and  Coiuiecticui.  and  X'irginia  all  claimed  the  same  parcel  of  territory  north  of 
the  (ihio  River;  and  tliv  St.iti  s  witli  virull\-  defined  bomulanes.  i-^pecLllly  Maryland, 
protested  against  the  appropriation  by  individual  States  of  lands  gained  by  the  common 
effort  of  the  Revolutionary  War. 

"The  controversy  del.ved  the  ratifiration  of  the  .Articles  of  Coi;,  "eration  and  was 
finally  adjusted  by  a  series  of  atireements  between  the  competing  States,  and  a  series  of 
cessions  to  the  L'nion.  not  completed  until  1802." 

'  This  deed  of  cession  was  authorized  by  Congress  March  1,  1781.  Journals  of  the 
Continental  Ccngress,  Vol.  xix.  pp.  211-1.?. 

'  The  pledge  of  Congress  took  the  following  form : 

Resoh'i-d.  That  the  iinappropriatcd  lands  that  may  be  ceded  or  relinquished  to  the 
United  States,  by  any  particular  states,  pursuant  to  the  recommendation  of  Congress  of  the 
6  day  of  September  last,  shall  be  disposed  of  for  the  common  benefit  of  the  United  States 
and  be  settled  and  formed  into  (li^tiIlCt  republican  states,  which  shall  become  members  of 
the  federal  union,  and.  have  the  same  ri-hts  of  sovereignty,  freedom  and  independence, 
as  the  other   states;   that  each   state   which   shall   be   so   formed   shall  contain  a   suitable 


THE  ADMISSION  OF   NE'V   STATES 


293 


measure  taken  by  it  could  be  final,  resolving  that  the  lands  to  which  the 
States  should  cede  their  claims  should  be  formed  into  republican  States  upon 
a  footing  of  equality  with  those  forming  the  Union  which,  by  the  second 
of  the  Articles  of  Confederation,  was  declared  to  be  free,  sovereign  and 
independent. 

The  question  had  now  become  largely  one  between  Virginia  and  Mary- 
land. "  Preferring  the  good  of  the  country  to  every  object  of  smaller 
importance,"  the  State  of  Virginia  sacrificed  whatever  claim  it  may  have 
had  to  the  west  and  the  northwest  by  offering  to  cede  it  to  the  Union,  thus 
removing  from  Maryland  all  ground  for  further  delay  in  acceding  to  the 
Confederation.  Yielding  to  the  pressure  of  the  States  and  to  the  desire  of 
France  that  the  Union  be  consummated  in  the  interest  of  the  common  cause, 
the  State  of  Maryland  au.horized,  on  February  2,  1781,  its  delegates  to 
ratify  the  Articles.  This  was  done  on  March  1,  1781.  Pursuant  to  the 
agreement,  Virginia  authorized,  by  an  act  of  December  20,  1783,'  its  dele- 
gates to  execute  a  deed  of  cession  to  the  territory  in  question  to  the  United 
States,  which  was  done  on  March  1,  1784,  and  on  April  23d  of  the  same 
year  the  Congress  provided  a  temporary  government  for  the  ceded  territory.' 

It  was  evident  that  the  United  States  in  Congress  assembled  had  earnestly 
sought  to  quiet  title  to  the  western  territory,  in  order  to  open  it  to  settlers 
upon  what  then  was  and  now  must  be  called  equitable  terms.  The  delegates 
of  the  States  had  pledged  the  Confederation  to  the  admission  of  tracts  to  the 
west  as  States  upon  a  footing  of  equality  when  the  time  should  come  for 
such  action.  The  members  of  the  Federal  Convention  who  in  some  instances 
were,  as  has  been  stated,  members  of  the  very  Congress  which  proposed  the 
Northwest  Ordinance  during  the  sessions  of  the  Convention,  appeared  to 
have  taken  it  as  a  matter  of  course  that  the  territory  west  of  the  mountains 
would  be  carved  into  States  and  admitted  to  the  more  perfect  Union  upon 
terms  of  equality.  Therefore  .Article  X\'II  of  the  first  draft  of  the  Con- 
stitution, reported  on  August  6,  1787,  provided  that  new  States  should  be 
admitted  on  the  same  terms  with  the  original  States.  Mr.  Gouverneur 
Morris  moved  to  strike  out  this  clause,  saying  that  "  he  did  not  wish  to  bind 
down  the  Legislature  to  admit  Western  States  on  the  terms  here  stated  .  .   . 


\'irffinta 

RclinquUhct 

Claim 


extent  of  territory,  not  less  than  one  hundred  nor  more  than  one  hundred  and  fifty  miles 
squ.irc,  or  as  near  thereto  as  circumstances  will  admit: 

That  the  necessary  and  reasonable  expcnces  which  any  particular  state  shall  have  in- 
curred since  the  commencement  of  the  present  war,  in  subduing  any  of  the  British  posts,  or 
in  maintaining  forts  or  garrisons  within  and  for  the  defence,  or  in  acquiring  any  p.irt  of 
the  territory  that  may  be  ceded  or  relinquished  to  the  United   Slates,  sh.ill  be  reitnlmrsed ; 

That  the  said  l.inds  shall  be  granted  and  settled  .it  such  tinv  and  under  such  regula- 
tions as  shall  hereafter  be  agreed  ou  by  the  United  States  in  Cungrcss  assembled,  or  any 
nine  or  more  of  them.    Journals  of  the  Continental  Congress,  Vol.  XVIII,  p.  915. 

'  See  American  History  Leaflets,  No.  22,  pp.  12-15. 

"  Journals  nf  the  American  Congress,  MoX,  IV,  pp.  379-80. 


294  THE  UNITED  8TATO I  A  STUDY  IN   INTERNATIONAL  OBCANIZATIOM 


Ntw  Sum 

M  Equality 
with  Old 


Hi«a 


He  did  not  wish  however  to  throw  the  power  into  their  hands."  '  Mr.  Madi- 
son opposed  this  motion.  "  insisting  that  the  Western  States  neither  would 
nor  ought  to  submit  to  a  union  which  degraded  them  from  an  equal  rank 
with  the  other  States."  Mr.  Mason  followed  him,  saying,  "If  it  were  pos- 
sible by  just  means  to  prevent  emigrations  to  the  Western  Country,  it  might 
be  goo<l  policy.  But  go  the  people  will  as  they  find  it  for  their  interest,  and 
the  best  policy  is  to  treat  them  with  that  equality  which  will  make  them 
friends  not  enemies."  But  Roger  Sherman  of  Connecticut  had  already  put 
the  matter  on  unassailable  grounds,  saying  that  he  "  thought  there  was  no 
probability  that  the  number  of  future  States  would  exceed  that  of  the  Exist- 
ing States.  If  the  event  should  ever  happen,  it  was  too  remote  to  be  taken 
into  consideration  at  this  time.  Besides  We  are  providing  for  our  posterity, 
for  our  children  &  our  grand  Children  who  would  be  as  likely  to  be  citizens 
of  new  Western  States,  as  of  the  old  States.  On  this  consideration  alone, 
we  ought  to  make  no  such  discrimination  as  was  proposed  by  the  motion." " 
Because  of  the  opposition  of  men  of  the  school  of  Gouverneur  Morris, 
the  principle  of  equality  was  not  consecrated  in  the  Constitution,  but  as 
equality  is  the  very  life  and  breath  of  .American  institutions  it  has  obtained 
in  practice,  and  each  new  State  is  admitted  to  the  Union  upon  a  footing  of 
equality.  For,  as  stated  by  Mr.  Justice  Lurton  in  delivering  the  opinion  of 
the  Supreme  Court  in  the  case  of  Coyle  v.  Smith  (221  U.  S.,  559,  580), 
decided  in  1911 : 

The  constitutional  equality  of  the  States  is  essential  to  the  harmonious 
operation  of  the  scheme  upon  which  the  Republic  was  organized.  When  that 
equ  y  disappears  we  may  remain  a  free  people,  but  the  Union  will  not  be 
the  Liiion  of  the  Constitution.' 

The  rights  of  the  existing  States,  however,  were  safeguarded  against 
partition  or  involuntary  union  with  other  States,  whi'-h  provisions  inured  to 
the  lienefit  of  all  States.  They  are  thus  expressed  in  the  third  section  of 
Article  IV  of  the  perfected  Constitution : 

No  new  State  shall  be  formed  or  erected  within  the  Jurisdiction  of  any 
other  State ;  nor  any  State  be  formed  by  the  Junction  of  two  or  more  States 
or  Parts  of  States,  without  the  Consent  of  the  Legislatures  of  the  States 
concerned  as  well  as  of  the  Congress. 

It  will  be  observed  that  the  consent  of  Congress  is  required  even  when 
the  States  themselves  might  be  willing,  inasmuch  as  the  question  is  one  con- 
cerning the  Union  as  a  whole  as  well  as  of  the  States  thought  to  be  more 
closely  involved. 

'Documentary  History.  Vol.  iii,  pp.  642-3.    Sessioti  of  August  29th. 

'Ibid.,  pp.  332-3.    Session  of  July  I4th. 

'J.  B.  Scott,  Judicial  Settlement  of  Controversies  between  States,  Vol.  i,  p.  64. 


THE   ADMISSION   OF    NEW   STATM 


295 


A  further  passage  of  this  section  may  be  quoted  as  showing  how  easily 
despotism  in  others  is  the  exercise  ,.f  j„st  rifihts  in  ourselves,  for  in  the  next 
.ucceeding  clause  it  is  provi.ie.i  that  "the  ConRrcss  shall  have  Power  to  <lis. 
pose  of  and  make  all  needful  Rules  and  Regulations  rcsiK-cting  the  Territory  on.,„„„. 
or  other  Property  helon^nng  to  the  Unif<l  Stait-s."  And  this  clause  has  t^J'.*-" 
been  interpreted  by  the  Supreme  Court  to  vest  in  the  Congress,  as  to  it  shall 
seem  expedient,  the  unquestioned  and  indeed  unfiuesti.mable  right  to  govern 
the  territ<.ries  of  the  United  States  until  their  admission  to  the  Union.  As 
a  matter  of  fact  Congress  has  exercised  this  p,nvcr  in  such  a  way  that  the 
governors  of  the  territories,  the  judges  of  their  courts  created  l,y  act  of 
Congress,  are  apiK.intc.l  l.y  the  President  by  and  with  the  conscm  of  the 
Senate,  an.l  that  the  acts  of  their  legislatures,  created  by  the  Congress  and 
mvested  with  such  iK)wers  as  the  Congress  deems  advisable,  may  l«  set 
aside  by  the  Congress  of  the  United  States.  A  .lelegate  from  each  territory 
elected  by  the  qualified  voters  thereof,  does  indeed  sit  in  the  House  of  Repre- 
sentatives, but  he  may  not  vote  although  he  may  participate  in  debate. 

As  pronounced  a  friend  and  advocate  of  the  more  perfect  Union  under 
the  Constitution  as  Chancellor  Kent  feared  that  the  evils  of  the  old  system 
would  reappear  in  the  new.  saying  in  his  Commentaries  on  American  Law 
first  published  in  1826: 

If  therefore,  the  governmem  of  the  United  States  should  carry  into 
execution  the  project  of  colonizmg  the  great  valley  of  the  Oregan  to  tl^  west 
of  the  R,Kky  Mountains.  ,t  would  alford  a  suhjcrt  of  grave  consideration 
wha  would  he  he  future  c.v.l  an.l  political  destiny  of  that  country.  l" 
noul.l  k.  a  long  time  before  it  would  be  populous  enough  to  be  created  into 

Z.h,TL'  7'"^'"'  *•''"'•  "".''•  '"  "^^  "ueantin.e.  upon  the  doctrine 
taught  by  the  acts  of  congress,  and  even  by  the  judicial  decisions  of  the 
Supreme  Court,  the  colonists  would  be  in  a  state  of  the  most  complete  sub^ 
ordination,  and  ar.  dependem  upon  the  will  of  congress  as  the  people  of  this 
country  would  have  been  upon  the  king  an.l  parliament  of  Great  Uritain    if 

Su7hTsKtn'n7  TT?"^  '^''"  ''^""  *"  ''•"''  "^  '"  =»"  "^"  whatsoever 
J»uch  a  state  of  absolute  sovereignty  on  the  one  hand,  and  of  absolute  de- 
pendence on  the  other,  is  not  at  all  congenial  with  the  free  and  independent 
spirit  of  our  na  ive  institutions;  and  the  establishment  of  distant  territorial 
governments,  ruled  according  to  will  and  pleasure,  would  have  a  very  natu"a 
tendency,  as  all  proconsular  governments  have  had,  to  abuse  and  oppression,' 

But  the  Congress  has  exercised  its  powers  in  wisdom,  and  the  territories 
have  been  rapidly,  indeed  some  think  too  rapidly,  admitted  to  statehood  In 
Milton  s  conception.  Presbyterian  might  indeed  be  "  old  priest  writ  large  " 
but  the  Congress  of  the  United  States  is  not  another  form  or  name  for  that 
imperious  Parliament  whose  powers  it  exercises  in  the  New  World. 
'James  Kent.  Commtnlaries,  1826.  Vol.  I,  pp.  360-1. 


XV 


♦*t*il 


AMENDMENTS  AND  RATIFICATIONS 

li  muit  be  rrrolUrU'cl  that  the  I'onstitution  was  proposed  to  the  people  of  the  Statei 
M  a  u/io/i',  ami  iitiaiiiiiiouily  adipttd  a>  a  !>/ir</i-,  it  lieitiK  a  part  of  iht-  1'iitotit.itiun  ihat 
nut  li'o  than  ii  slmnld  he  coniprlcnl  to  make  any  alteration  in  what  had  hern  iinaninmudy 
agreed  to.  So  (jreat  is  the  cant'on  on  thN  innnt,  that  ni  two  lasci  where  pecnliar  inlerrsU 
were  at  >t.ike  a  inajurity  e\cn  uf  >4  ire  distruitcd  and  a  unanimity  rr<|uircd  to  niakc 
any  tli.inue  alTniiiiK  thu'-e  cases 

WluMi  tlie  (  niisiltution  was  ado|ited  as  a  whole,  it  is  certain  that  there  ar*  inany  of 
its  I'arlH  which  if  proposed  by  themselves  would  have  heen  promptly  rejected.  It  i»  far 
from  mipossilile  iliat  everv  part  of  a  whole  wnuld  he  rejected  hy  a  majiirity  and  yet  the 
whole  he  un.iiiiniously  accepted  Constitutions  will  rarely,  prohalily  never  lie  formed 
with'iil  iniitu.il  concessions,  without  arlicle«  conditioncil  on  &  liutaiuinK  each  other,  ti 
there  a  (  oiisinution  of  a  sinK'e  Slate  out  of  the  24  that  would  hear  ihe  experiment  of 
haviMK  Its  iiiinpomni  parts  sulnnitled  to  the  people  separately,  .t"d  decidi  il  on  accordinif 
to  ihcir  insulated  merits,  (lixtruil  from  It-ller  «/  lamia  Madison  Ik  Ki<h,-rl  V.  Hayne, 
I  nili-J  SUiU-s  .SViiudir  from  Siiulh  Curn/inii.  dalt-J  .Ifril  3/4,  iSjo,  Gaillard  Hnnt,  Editor, 
The  H'nlinqs  of  James  Madison.  I'ol.  f\.  1910,  p.  JVA  note.) 

But  it  is  universally  understood,  it  is  a  part  of  the  history  nt  the  day,  that  the  great 
revolution  which  estahlished  the  constiluti'in  of  the  I'nited  '^tates,  was  not  effected 
without  ininieiise  opposition.  Serious  fears  were  extensively  en'.ertaitied,  that  those  powers 
which  llii  patriot  statesmen,  who  then  watched  over  the  interests  of  our  country,  deemed 
essential  to  union,  ami  to  the  attainment  of  those  invaluahle  obiects  for  which  union  was 
souKhl,  miKht  Ih-  exerciseil  in  a  iiiaiiner  dangerous  to  liberty  In  almost  every  conviMilion 
by  winch  the  constitution  was  adopted,  amendments  to  yiiard  aKaiiist  the  abuse  of  power 
were  recomincn.led  These  ameiidtneiits  ilemanded  security  aKauut  the  apprehended 
encro,ichmenls  of  the  peneral  fjovcrnment — not  against  those  of  the  local  Kovcrnmcnts. 
In  compliance  with  a  sentiment  thus  generally  expressed,  to  quiet  fears  thus  extensively 
ci'fcrtai'ud.  anieniliiients  were  projiosed  by  the  rei|iiired  majority  in  congress,  and  adopted 
by  the  slates.  These  anu  idments  .  .iiitam  no  rxfiression  indicating  an  intention  to  apiOy 
them  to  the  state  Kovernments.  This  court  crfiuiot  so  ,^pply  t'lcm.  ( .'.'i!.-;  Justice  Sfarshall 
in  Uarion  v   The  Ma\or  and  City  of  Kallimore,  7  I'elers,  il},  ifo,  decided  in  IHJJ.) 

The  prohibition  alluded  to  as  contained  in  the  amendments  to  the  constitution,  as 
well  as  others  wit  .  which  it  is  associated  in  those  articles,  were  not  il<  sij;iicd  as  limits 
upon  the  State  Koverninents  in  reference  to  their  own  citizens  Thcv  are  exclusively  ri'stnc- 
tiotis  upon  federal  (lower.  intended  to  prevent  interference  with  tlie  nyhls  of  the  States, 
and  of  their  citi/ens  Snrli  has  been  the  interpretation  given  to  those  amendments  hy 
this  court,  in  the  case  of  luirr,<n  v  The  May"r  and  Cily  Cntincil  of  llttllimore  7  Pet..  2-1,'; 
and  such  indeed  is  the  only  rational  and  intelligitile  interpretation  which  those  amendments 
can  bear,  since  it  is  neither  probable  nor  credible  that  the  States  should  have  anxiously 
insisteil  to  inyraft  upon  tlir  federal  constitution  restrictions  upon  their  own  authority. — 
restrictions  which  sonic  of  the  States  rcnarded  as  the  .fiiic  ijua  non  of  its  ado.ition  by  them. 
(Mr.  Justice  Daniel  in  I'.'x  v.  The  State  of  Ohio,  s  Howard,  410,  434-435.  decided  111  1S47.) 

"  This  term  I'nited  States,  desitnates  the  whidc  .American  empire."  It  is  the  name 
given  to  our  i/real  ref'iil'lif,  composed  of  states  and  territories;  S  \Vh.  514:  "con- 
stituent parts  of  one  great  empire:"  6  \Vh.  414;  "who  have  formed  a  confederated 
government;"  12  Wh.  .VU;  2  I'et.  S'>n.  1;  by  the  act  of  the  people  of  the  "great  empire," 
the  'great  republic."  the  ".AnKriiaii  empire,"  the  I'nited  States.  "The  people  of 
.tmrriia."  "the  .linerlcan  people."  "  tlic  people  of  the  Cntted  Stales."  are  but  terms  and 
names,   to  designate   the  grantor  of  the   lhin<).  which  was  thus   fornieil.  hy   the  people,  of 


lent;"  12  Wh.  .VU;  2  I'et.  ^<>0.  1;  by  the  act  of  the  people 

-eat    republic."    the    "  .AnKriiaii    empire,"    the     I'nited    Sti 

."  "the   .linerlcan  people."  "the  people  of  the   I'nited  Sta 
•  ,a,,,<.^.   (o  designate   the  grantor  of  the   f/iim;.  which  was  thus   foiTum.  ny    oie  |iri>i'ic,  01 
the  constituent  parts;   the  iliing,  the  pinver  which  formed  it,  by  a  thing,  this  constituti'^i* 
established  by  the  ratifications  of  nine  things,  conventions  of  nine  stales,  by  the  people 


1<)6 


AMENDMENTS   AND   RATIFICATinNt 


297 


ol  «»ch  ••  a  tiatt.     (Mr.  JuiUtt  nalJuix,  .1  Cxneral  ittw  of  iht  Ongm  and  Xalure  of 
Iht  LotutitMliiiH  and  Coffnim,->tl  ,if  iht  (  mied  Sialtt.  iHj^,  pit) 

Twrl»r  tUtrt  met  in  convrntmn  by  their  «e|>aratc  uclruatmiu.  to  digeHt,  reiluit  to 
form,  and  «ubmil  tu  •  connreji  ui  ilit-  »lali»,  a  frame  of  Kovernimiii  i,.r  .uili  (if  the 
Jtatev  a>  WkiuUI,  in  conveiitioii»  .,f  ih,  ^u\r.  ratify  it  a',  ihiir  ail.  tht  fr..iir  «»,  madr 
It  propojed  tlie  initiliition  of  a  KovcriniKiit  Iwtmin  Ihr  ,1.11,-,  »ho  sIhuiM  .i.|.m  11,  nine 
of  w.  om  were  dnlared  (um|ieti-iit  I  he»e  >e|iarale  cimviiitMins  were  11.. I  In  lif  likt-  tlie 
general  ciiiurnlioii,  iiimpo»e(f  of  mcmlurn  a|iiMiinUd  In  \laU-  /.  i(  \hlur,s  with  |"iwer 
only  ti>  propose  an  act  to  th?ni  an  lh,»  himsIiIiu-mK.  and  tlinuinh  ilniii  to  ihi-  /..■,./■/.•  ,,f 
the  state.  To  the  proposed  act  wu»  |.ref..iv<l  a  didaratmn.  thai  it  «a»  to  U-  iln-  art  of 
Ihe  ftofle.  ani\  a  constituiiof  for  a  Kowrnmint.  siuh  as  it  dtUiiralr.l  .s,i  n  wa,  suti- 
fjiili.'d  •)  Connress,  and  In  them  1.1  •ucli  .tan-  IcKKlauirr.  »li.>  callid  coii\<nii,iin  of 
delen4l<»  eleitid  h)  I:,'  />.■.■/'/,■  i<f  ,.i./i  ,i(u/.  .  nine  of  thi-M-  con.ri  turn'.  sc|iarai.  Is  i.'tih-d  ihe 
aU,  111  the  nanii  of  the  piopk-  who  had  author. /ed  it,  and  thus  the  ;ir,p,,„,|  (rainc  of 
goveriinuiit  >  a>  e»lahli»lud  as  a  nnuntntion  for  those  nine  states,  who  tlun  .oninosid 
Ihe  Lnitcd  Stales  of  .America,"  and  iHtwccii  themseKes  only.  The  ckclaralion,  111  itl 
front,  therefore,  necessarily  relers,  not  t<i  the  time  win  11  it  was  proposed,  lint  wlun  it  wa' 
ordameil  and  estahlished,  hy  "the  ralihcation  of  the  conventions  of  nine  slates."  as  thit 
was  done  hy  the  people  <if  those  stales,  so  the  act  declares,  "  We  Ihe  pcidr  of  the  I  iiiicd 
Stalet.  (which  have  ratified  I  do  ordain  (by  our  separate  ratihcalions  1  this  mnstituthui  " 
for  (the  slates,  and  between  the  tales  so  ratifyi.ig  the  same,  who  are  ihcrehv )  "  Ihe 
United  Stales  of  .\merica  '  (.1/r.  Jvslif  Haidwm.  .1  (,Vh,tu/  It,:,  of  llic  Orujm  and 
Mature  of  the  Conjtilutwn  and  Goiurumfnl  of  the  i  mud  Slatis.  iilJ7,  f    lH) 

There  never  has  been,  or  can  be  any  difference  of  opinion  as  to  the  meainnB  of  the 
ordaininK  parts  of  the  constitution  in  the  terms,  -the  tafle  of  the  jctcru'  .it,il,s  "  'the 
several  j/u/.j  uhich  way  be  included  in  this  uiium .  '  '  ea,h  state,  "  for  they  do  n/.t  admit 
of  two  meaninKJ.  They  refer  to  those  states  which,  hamiK  ratified  the  ciHistilnti.n  are 
each  a  constituent  part  of  the  United  States,  coinposiiin.  hy  their  union,  the  I  ml,;!  SlcU.s 
of  .hiienai;  and  to  the  people  of  each  stale,  as  ihr  fcT't-  of  these  I  nil  d  States  When 
terms  are  so  dchnite  in  the  l)od>  of  an  instrument,  and  one  less  <lrtin,ie-  is  used  in  the 
preamble,  which  can  l)c  made  eijually  definite  by  reference,  the  established  maMiii  a|.,.Ius— 
"id  crtum  eU  nund  cerium  i.'.Wi  f'lesf  (.!/»  Ju.ilue  HalJuin.  .1  uen.r.il  liew 
of  tlie  Urigitt  and  Saturt  of  the  Constitution  and  Oovernmenl  of  the  I'niled  Sioiei  iXi7 
f.  30.)  .J/. 

I  have  only  to  add  one  other  consideration,  to  illustrate  the  mcaninR  of  the  preamble 
.\ll  awree  that  Ihe  constitution  was  to  he  estal.li,lied  hy  (/),•  f.-.if'le  of  the  United  States 
whenever  the  conventions  of  nine  Male,  ,h.inld  r.itiiy  it;  all  niiisl  aKree.  that  «hen  11  was 
propose.!  for  adoption  in  17»7,  it  could  ii.it  he  foreseen  which  of  the  states  w.nild  so  ratify 
It,  the  slates  th.relore  coul.l  n.it  he  named  nil  llieir  separate  raiilicati..ns  were  Kiven  It 
provided  for  the  a.lmission  ol  new  stales,  hut  no  one  couM  .livine  their  names  or  localitv; 
states  could  lie  '  f.irmed  hy  the  junction  of  two  or  more  states,"  but  none  coul.l  sav  <>f 
vs_hich  Ihe  constituti.m  was  mtcn.led  for  p..steriu,  thriMiuh  all  time  an.l  f,,.  "tlie  land" 
the  whole  territory,  and  all  the  slates,  old  and  new;  as  .me  law.  speakiiiK  m  the  same 
words,  and  with  the  same  intenli.m.  al  the  linic  it  was  prop..se.l.  an.l  at  each  [i.  rio.l  when 
any  state  ratihcd  it.  and  thus  fucaine  one  of  "the  United  States  of  .\nurica."  hv  the  .ict 
of  the  people  of  the  states  respectively 

When  the  terms  "we.  the  people. '"  .if  the  United  States."  are  thus  applie.l.  they  seem 
to  me  not  only  aiipropriale  to  the  instninienl.  hot  the  ..nly  terms  that  would  he  «o  •  it 
uses  terms  in  all  Us  parts,  yet  v  .in.l  no  .Ictinitions  ,,r  explanations,  it  was  n.it  mtend.d 
for  a  coile;  and  the  term  "people.'  was  a  mere  .lesiKnaii.ni  .if  the  (lOwer  hv  winch  the 
constitution  was  made,  as  "the  states"  were  designated  by  their  separate  ratifications 
Hence  it  referred,  in  1/89,  to  eleven  only,  then  to  the  old  thirteen  states,  and  Uoa  refers 
to  the  thirteen  new  states:  an.l  when  .ithers  shall  he  a.lmittcd  'nto  the  Lni.m  it  will  refer 
to  llieni  a-.  It  did  to  the  old,  and  now  does  to  the  new  "The  people"  "of  the  several 
states,  whi.h  may  be  included  within  this  Uni.n."  as  the  constiti-nt  p.nvcr  of  the  fed.  ral 
government  i.Mr.  Justice  lUtlduin.  .1  General  riezf  of  the  Origin  -id  Xature  of  the 
Constitution  and  Giizernmcnt  of  the  i'niled  Stales,  1S37,  f.  t;;.) 

Each  state  still  has  two  constitutions  of  government,  one  for  state,  the  other  for  federal 
purposes:  both  ordained  hy  the  same  people,  and  in  the  same  manner  in  a  conv.ntion  of 
their  representatives,  elected  by  the  elect  irs  of  the  stales,  for  the  special  obicct.  whcrehv  in 
the    simple,    impressive,    instructive,    and    strictly    cons!'    .tiona!    lanaua-re    nf    th;-.    •.':-.  :rt. 


'\ 


298 


THE  UNITED  STATES:  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 


■W'^i' 


"  The  national  and  state  systems  are  to  be  regarded  as  one  whole."  6  Wh.  419.  "  The 
powers  of  government  are  divided  br'ween  the  government  of  the  Union,  and  those  of 
the  states."  "  They  are  each  sovereign,  with  re.s|Hct  to  the  objects  committed  to  it ;  and 
neither  sovereign,  with  respect  to  the  objects  committed  to  the  other."  4  VVh.  410  (Mr. 
Justice  Baldwin,  A  Genera!  I'iew  of  the  Orxgin  and  Nature  of  the  Constiiulwn  and 
Government  of  the  United  States,  1837,  f.  c  ) 


Art.  7.  "The  ratifications  of  the 
establishment  of  this  constitution,  h 

It  IS  then,  by  the  separate  action 
a  convention  of  nine  states  J  that  tht 
but   when  the  ninth  acted,  the  grca 


wentio.i-.  ot  iiire  states  shall  be  sufficient  for  the 
V  ecn  the  sntc  v.-  'atifying  the  same." 
>i  tlic  5taUs,  in  .  •  i.ventions  of  nine  states,  (not  of 
riir  •  was  mad,-;  ■  act  of  eight  produced  no  result; 
vi;;k  was  .j'^iccti  '  as  between  the  nine.  Until  the 
other  four  so  acted,  they  were  no  pa:'.  01'  'he  I  iitcd  states;  nor  were  the  people  of  the 
non-ratifying  states,  any  part  of  the  people  ol  il" :  United  States,  who  ordained  and 
established  it. 

Tliat  the  term,  conventions  of  states,  meant  conventions  of  delegates,  elected  by  the 
people  of  the  several  states,  for  the  express  purpose  of  assenting  or  dissenting,  to  their 
adoption  of  the  proposed  constitution,  is  admitted  by  all ;  as  also,  that  no  general  con- 
vention of  the  whole  people  was  ever  convened  for  any  purpose :  and  that  tlie  members 
of  the  convention  which  framed  it,  m»t,  and  acted  as  states,  consented  to.  and  signed  it 
for  and  m  behalf  of  the  states,  whom  they  respectively  represented,  appears  on  its  face. 
It  was  proposed  to  the  people  of  each  state  separately,  and  was  so  ratified ;  it  existed 
only  between  those  states,  whose  people  had  so  accepted  it.  It  would,  therefore,  most 
strangely  contradict  itself,  throughout  all  its  provisions,  to  so  construe  the  preamble,  as  to 
make  it  a  declaration,  that  it  wa-i  ordained  In  any  other  power  than  that  of  the  people 
of  the  several  states,  as  distinct  bodies  politic,  over  whom  no  external  power  could  be 
exerted,  but  by  their  own  consent 

These  are  not  only  the  necessary  conclusions,  which  flow  from  the  plain  language  and 
definite  provisions  of  the  constitution  itself,  hut  their  settled  interpretation  by  this  Court. 
"  From  these  conventions  the  const-tution  derives  its  whole  authoritv.  The  government 
proceeds  directly  from  the  people,  and  is  ordained  and  established  in  the  name  of  the 
people  "    4  Wh.  40.1 

If  it  is  asked  what  people:  the  answer  is  at  hand.  " .(  convention  of  delcqates  chosen 
tn  each  stale,  by  the  people  thereof,  ass-mblcd  in  their  j.-ivrof  slates"  lb  sup  ( l/r 
Justice  KaUUttn.  .-i  General  I'iew  of  the  Origin  and  Nature  of  the  Constitution  and  Gov- 
trnment  of  the  Untied  States,  1S3;,  p.  33.) 


CHAPTER  XV 


AMENDMENTS  AND   RATIFICATIONS 

The  members  of  the  Convention  were  too  wise  not  to  foresee  that,  how- 
ever perfect  they  might  themselves  consider  their  work,  it  would  suffer 
revision  at  other  hands.  They  were  indeed  ostensibly  engaged  in  revising 
one  instrument  of  government,  and  while  attempting  to  correct  the  obvious 
defects  in  the  Articles  of  Confederation  which  experience  had  disclosed,  they 
could  not,  nor  did  they  attempt,  to  forecast  events  in  such  a  way  as  to  exclude 
the  possibility  of  change  in  the  fundamental  charter  of  the  Union.  They 
wisely  left  the  future  to  "posterity."  Inleed  they  were  so  convinced  of 
the  necessity  of  revision  that  they  facilitated  it  by  rejecting  the  require- 
ment that  it  could  only  be  brought  about  by  the  unanimous  consent  of  the 
States. 

The  thirteenth  of  Mr.  Randolph's  resolutions  stated  that  "  provision  ought  p^""- 
to  be  made  for  the  amendment  of  the  Articles  of  Union  whensoever  it  shall  Amendment 
seem  necessary,  and  that  the  assent  of  the  National  Legislature  ought  not 
to  be  required  thereto."    This  was  indefinite,  and  purposely  so,  inasmuch  as 
the  question  was  difficult  in  itself  and  depended  upon  the  adoption  of  a  satis-' 
factory  form  of  government  by  the  States  in  Convention  assembled. 

Without  entering  into  details,  it  is  sufficient  to  note  in  this  connection 
that  the  unanimous  consent  required  by  the  thirteenth  of  the  Articles  of  Con- 
federation was  rejected,  as  it  had  been  found  impracticable  if  not  impossible 
to  obtain  the  consent  of  each  of  the  States  to  a  modification  of  the  Articles 
when,  rightly  or  wrongly,  the  interest  of  any  State  was  supposed  to  be  un- 
favorably affected  by  the  amendment;  and  it  is  not  too  much  to  say  that  the 
Articles  of  Confederation  failed  and  were  discarded  largely  because  of  the 
practical  if  not  the  theoretical  ''  :     ;f  power  of  amendment. 

As  in  so  many  other  part  tlie  Constitution,  the  fifth  Article,  which 
states  the  final  views  of  the  Convention  on  this  subject,  was  the  result  of 
concession  and  compromise.  Thus,  the  States  themselves  conceded  that  all 
might  be  bound  by  the  decision  of  a  lesser  number,  eventually  fixed  at  three- 
fourths.  But  the  parties  which  had  stood  for  their  interests  and  had  secured 
their  recognition  were  unwilling  to  lose  the  fruits  of  victory  through  amend- 
ment. For  example,  the  States  in  which  slavery  existed  and  appeared  to 
be  profitable,  or  at  least  was  the  basis  of  their  economic  system,  insisted  that 
the  slave  trade,  guaranteed  by  Article  I,  Section  9  of  the  Constitution,  should 

399 


'  -^mm 


Representation 
o<  Small  State* 
Not  Subject  to 
Amendment 


-V^'^til 


McthnJs 

<  t    Amendment 


300  THE   UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 

not  be  lost.  Therefor  it  was  provided  that  "  no  Amendment  which  may 
be  made  prior  to  the  .  ear  One  thousand  eight  hundred  and  eight  shall  in 
any  manner  affect  the  first  and  fourth  Clauses  in  the  Ninth  Section  of  t'  <• 
first  Article."  Indeed,  after  the  Constitution  was  a  completed  instrument, 
the  right  of  the  small  States  to  equality  was,  in  the  session  of  September  15, 
1787.  safeguarded  for  all  time  against  amendment;  for  although  the  Con- 
stitution may  be  amended  in  every  other  particular,  it  may  not,  according 
to  its  terms,  be  legally  amended  in  this  respect.  A  motion  was  put  to  that 
effect  by  a  delegate  of  one  of  the  large  States,  and  curiously  enough  by  that 
very  dt'legate  who.  in  conference  with  the  Virginian  delegates  before  the 
opening  of  the  Convention,  had  proposed  to  deprive  the  little  States  of 
equality.  "  M'.  Gov'.  Morris."  to  quote  Mr.  Madison's  Nbtes.  "  moved  to 
annex  a  further  proviso  — '  that  no  State,  without  its  consent  sh.  !1  be  de- 
prived of  its  equal  suffrage  in  the  Senate.'  "  And  Mr.  Madison;  perhaps 
not  without  a  smile,  for  he  possessed  a  keen  sense  of  humor,  continued. 
"  This  motion  being  dictated  by  the  circulating  murmurs  of  the  small  States 
was  agreed  to  without  debate,  no  one  opposing  it,  or  on  the  question,  saying 
no."  '  This  provision  appropriately  forms  the  last  and  final  clause  of  the 
fifth  Article  dealing  with  amendment. 

Admitting  therefore  that  the  Constitution  was  to  be  amended,  that  cer- 
tain interests  were  so  important  that  they  should  not  be  affected,  one  for  the 
period  of  twenty  years,  the  other  for  all  time,  the  question  of  amendment, 
accepted  in  principle,  became  a  matter  of  detail.  Extreme  advocates  of  the 
rights  of  the  States,  such  as  Mr.  Luther  Martin  of  Maryland,  would  insist 
that  no  modification  should  be  made  in  the  instrument  of  government  with- 
out the  consent  of  all  the  States.  The  advocates  of  a  consolidated  goverr 
ment  could  not  propose  less  than  a  majority.  Neither  of  these  views  cc  Id 
prevail.    The  matter  was  plainly  one  for  compromise,  and  a  compromise  was 

effected. 

It  will  be  recalled  that,  in  the  matter  of  amendment.  Mr.  Randolph's  reso- 
lution (m  the  subject  proposed  "the  assent  of  the  national  Ley;islature  ought 
not  to  be  required  thereto,"  a  proposal  made,  no  doubt,  because  of  the  diffi- 
culty in  getting  Congress  to  move;  but  the  Congress  of  the  more  perfect 
Union  was  to  be  different  from  the  Congress  of  the  Confederation.  It  was 
in  any  event  a  central  authority,  and  it  miglit  appropriately  be  used  as  an 
agent  for  this  purpose,  provided,  however,  that  it  was  only  an  agent,  not 
a  principal  and  that  the  States  might  take  the  initiative  in  the  matter  if  they 
so  desired.  By  concession  and  compromise,  it  therefore  resulted  that  two- 
thirds  of  both  houses  or  the  legislatures  of  two-thirds  of  the  several  States 
were  to  propose  amendments,  but  their  ratification  was  in  no  event  to  depend 


il,ii\  lusui^ 


\ol.  Ill,  p.  758. 


AMENDMENTS   AND  RATIFICATIONS 


301 


upor  ;he  Conpr.ss.  whiA  is  after  all  only  the  agent  of  the  States  for  cer- 
tain defined  legislative  purposes,  but  upon  the  States  or  their  citizens,  who  are 
the  source  of  power. 

The  amendments  thus  proposed  were  to  be  submitted  by  the  Congress 
Whether  they  were  proposed  by  the  Congress  or  by  a  convention  called  by 
the  Congress  upon  the  initiative  of  the  States,  the  proposals  themselves  were 
to  be  "  ratified  by  the  Legislatures  of  three  fourths  of  the  several  States,  or 
by  Conventions  in  three  fourths  thereof,"  as  the  one  or  the  other  mode  of 
ratification  may  Ix;  proposed  by  the  Congress.  Whereupon  the  amendments 
thus  approve.!  are  "  valid  to  all  Intents  and  Purposes,  as  Part  of  this  Con- 
stitution." It  will  be  observed  tiiat  the  ratification  by  the  legislature  or  special 
convention  of  a  State  is  regarded  as  of  equal  force  and  effect,  whereas 
Article  VII  of  the  Constitution  provides  that  "the  Ratification  of  the  Con- 
ventions of  nine  States,  shall  lie  sufficient  for  the  Establishment  of  this  Con- 
stitution between  the  States  so  ratifying  the  same."  It  is  also  to  be  noted 
that,  in  the  letter  of  the  President  of  the  Convention  transmitting  on  its  be- 
half the  Constitution  to  the  Congress,  it  is  "  Resolved,  That  the  preceding 
Constitution  be  laid  before  the  United  States  in  Congress  assembled,  and  that 
it  is  the  Opinion  of  this  Convention,  that  it  should  afterwards  be  submitted 
to  a  Convention  of  Delegates,  chosen  in  each  State  by  the  People  thereof, 
under  the  Recommendation  of  its  Legislature,  for  their  Assent  and  Ratifica- 
tion; and  that  each  Convention  assenting  to,  nnd  ratifying  the  Same,  should 
give  Notice  thereof  to  the  United  States  in  C.jngress  assembled."  ' 

The  question  may  arise  as  to  the  difiference  of  procedure  in  ratifying  the 
Constitution  and  the  amendments  thereto,  for  the  Constitution  receives  its 
validity  only  from  the  approval  of  conventions  of  the  several  States,  whereas 
an  amendment  changing  the  Constitution  is  valid  if  made  by  the  k-islature 
or  convention  of  the  States.  The  question  is  not  unimportant.  The  fifteenth 
of  Air.  Randolph's  resolutions  provided  "  that  the  amendments  which  shall 
be  olTered  to  the  Confederation,  by  the  Convention  ought  at  a  proper  time, 
or  times,  after  the  approbation  of  Congress  to  be  submitted  to  an  assembly 
or  assemblies  of  Representatives,  recommended  by  the  .several  Legislatures 
to  be  expressly  chosen  by  the  people,  to  consider  &  decide  thereon."  The 
slightest  familiarity  with  the  proceedings  of  the  Convention  shows  that  the 
advocates  of  the  more  perfect  Union  regarded  the  ratification  of  tlie  Con- 
stitution l3y  conventions  specially  called  within  the  States  instead  of  the  legis- 
latures therein  existing  as  both  fundamental  and  essential  to  its  success.  To 
extreme  ad-ocates  of  the  rights  of  the  State,  such  as  Mr.  Luther  Martin, 
the  ratification  by  the  State  was  sufficient,  as  the  State  was  sovereign  and  it 
was  immaterial  whether  it  be  by  special  assembly  or  by  tlie  legislatuie  of  the 
•  Ibid.,  Vol.  ii,  p.  20. 


iitt^  ' 


302 


T.!E  UNITED  STATES:   A   STUDY  IN   INTERNATIONAL  ORGANIZATION 


#*t*M 


A  Sntem 

of  Double 

Constitu- 

tiofu 


State,  as  this  was  an  internal  matter.    To  the  delegates  of  the  small  States 
ratification  by  the  legislatures  seemed  adequate,  inasmuch  as  the  legislature 
represented  the  State,  which  was  thus  necessarily  bound  by  its  act     And  it 
must  be  confessed  that  this  view  is  reasonable,  and  that  the  difference  seems 
to  be  one  of  form,  not  of  substance,  unless  we  look  below  the  surface.     If 
we  do  we  see  that  the  whole  theory  of  the  Constitution  depends  upon  this 
conception,  for  the  purpose  of  Mr.  Madison,  who  may  be  considered  as  the 
exponent  of  this  view,  was  not  merely  to  have  a  constitution  for  the  more 
perfect  Union,  but  to  have  this  constitution  become,  by  means  of  its  rati- 
fication by  the  people  of  each  of  the  States,  the  constitution  of  the  State  as  if 
it  had  originated  within  the  State.     In  this  event  the  constitution  would  be 
the  constitution  of  the  State  and  similar  to  an  ordinary  State  constitution 
in  that  it  referred  to  matters  affecting  the  State  and  therefore  properly  deter- 
mined by  it.     It  differed,  however,  from  the  ordinary  constitution  in  that 
it  also  affected  the  other  States.     It  was  therefore  devised  by  delegates  of 
the  States  and  ratified  by  conventions  of  their  people.     In  this  way  it  be- 
came the  constitution  of  all  for  general  purposes,  or  for  matters  in  common. 
The  constitution  framed  in  first  instance  and  adopted  by  the  people  of  the 
State  deals  with  local  or  particular  interests  and  not  with  interests  held  by 
the  States  in  common.    It  begins  and  ends  in  the  State  in  the  sense  that  its 
provisions  do  not  affect  the  States  in  general.     It  is  confined  to  the  State 
and  is  accordingly  considered  in  the  narrower  sense  the  constitution  of  the 
State.     In  either  case  ratified  by  a  Convention  of  the  people  of  the  State 
called  for  that  purpose,  it  is  the  constitution  of  that  State,  just  as  the  instru- 
ment of  government,  whether  originating  in  the  State,  framed  in  convention 
and  ratified  by  the  voters  of  the  State,  is  the  constitution  of  that  State.    The 
purpose  of  the  Convention  was  that  each  State  should  have  two  constitutions, 
one  for  general  purposes,  dealing  with  their  interests  in  common,  framed  by 
their  delegates  in  the  Federal  Convention  submitted  to  and  ratified  by  the 
Conventions  of  the  States  to  be  bound;  the  other  for  local  purposes,  con- 
fined to  or  not  extending  beyond  the  State,  framed  by  'ts  delegates  in  legis- 
lature or  in  convention  and  ratified  by  the  people  of  the  State  according  to 
their  pleasure. 

But  this  was  not  enough,  for  if  the  general  and  the  special  constitu- 
tion were  each  ratified  by  the  people  of  the  States,  each  would  have  an 
equal  validity  and  the  later  expression  of  the  popular  will  would  prevail. 
Tliat  is  to  say,  if  the  State  constitution  were  adopted  subsequent  to  the  rati- 
fication of  the  Federal  Constitution  the  provisions  of  the  State  constitution 
would  necessarily  govern.  Therefore,  in  order  to  prevent  this,  and  by  one 
act  to  make  the  Federal  Constitution  the  supreme  law  of  the  State  as  well 
as  the  instrument  of  government  of  the  Union,  and  irrevocable  and  not 


AMENDMENTS   AND  RATIFICATIONS  303 

subject  to  amendment  except  by  the  vote  of  three-fourths  of  the  States  it 
was  provided  in  the  second  clause  of  Article  VI  that  "This  Constitution, 
and  the  Laws  of  the  Ln.ted  States  which  shall  be  ma.le  in  Pursuance  thereof- 
and  all  Treaties  made,  or  which  shall  be  made,  under  the  Authority  of  the 
United  States,  shall  be  the  supreme  Law  of  the  Land;  and  the  Judges  in  every 
State  shall  be  bound  thereby.  a..y  Thing  in  the  Constitution  or  the  Laws  of 
any  btate  to  the  Contrary  notwithstanding." 

The  meaning  of  this  is  clear:  the  Constitution,  the  acts  of  Congress 
passed  in  accor.lance  with  its  terms  and  the  treaties  of  the  United  States 
are  to  be  "  the  supreme  law  of  the  land."  an  expression  ultimately  substituted 
by  t_he  Committee  on  Style  and  adopted  by  the  Convention  September  P 
1/8/  for  '  the  supreme  law  of  the  several  States,  and  of  their  citizens  and 
inhabitants  (Article  8  of  the  first  draft  of  the  Constitution,  submitted  on 
August  6th). 

There  was  to  be  one  constitution  of  each  State  for  general  purposes. 
There  could  be  as  many  State  constitutions  as  the  people  thereof  were 
minded  to  make,  but  the  Constitution  adopted  by  the  deleg.ntes  of  the  States 
when  ratified  by  the  people  of  the  State,  was  to  be  supreme.  "  any  Thing 
m  the  Constitution  or  Laws  of  any  State  to  the  Contrarv  n-twithstanding  "  • 

It  will  be  observed  that  the  judges  of  each  of  the  States  are  to  Ije  bound 
by  the  Constitution,  the  acts  of  Congress  made  in  pursuance  thereof  and 
the  treaties  of  the  United  States.  This  was  naturally  and  properly  so  be- 
cause the  Constitution  of  the  United  States  was  also  the  law  of  the  land 
that  IS  to  say.  of  each  State.  The  act  of  Congress  in  pursuance  of  its  terms 
was  a  law  of  the  State.  A  treaty  of  the  Unite.l  States,  being  a  law  of  the 
United  States,  was  necessarily  a  law  of  each  State.  The  judicial  power  of 
the  State  would  necessarily  extend  to  the  provisions  of  the  Constitution 
acts  of  Congress  and  treaties  of  the  United  States.    There  would,  however! 

,„  ,'J'l^-  1"'''''°"  ='^'"  ""hat  constitutes  the  government  of  .i  community  seekine  admission 
to  the  Inion  IS  a  polu.cal  rather  than  a  judical  one,  and  the  power  of  recoRn"z!,,rT  S  fte 
government  was  left  m  the  hands  of  Congress.  This  was  ma.le  clear  in  the  ca^.  V/ ,,//'  -^ 
fJ'J  iV^  ^°'^"^-  ••„V>-,''«-d'-'l  i"  18-t'».  in  which  the  constitutional  ty  ot"  the  acc'oed 

It    rests    with   Congres^s    to   decide   what    government    is    the    estahlished    one    in    a 
State.  I-or  as  the  Ututed  States  guarantee  to  each  State  a  republican  g.vernmem    Con 

?e^rnr\;^^;^:r;l^if  ^tbl^-  T"7^"  '^  """"^"^^  '•■  "^^  ^-^  be^^^ 

on  Ihe'.fa'rfoT.he's,'"-,,^  republican  fo..i.  of  goverrnKnt]  necessarilv  unplies  a  dutv 
on  tne  part  o.  the  States  themselves  to  provi,le  such  a  goveriuneni  Ml  the  ^ntes 
had  governments  when  the  Constitution  was  a.loptcd.  In  all  ^  pennlo  nnr  .<i,  at,  d 
Th-TL'-'""'-  "^""«^"'c.^.  representatives  elected  in  the  rnu  neV  sp  I' allv  prov  Im 
therveTe  aJil'u'tr'^fnf'';''",:'  ^''^  "°'  ^han«^--  They  were  accjp.e.l  pred^elv  as 
of  ^he  States  to  nrovidfri,'  *°  \  P"*"™"'  «hat  they  were  such  as  it  was  the  duty 
Tn  form  wMthin  t'h^^  . Thus  we  have  unmistakable  evidence  of  what  was  republican 
in  lorm.  withm  the  meanmg  of  that  term,  as  employed  in  the  Constitution. 


J' 


^■f^i 


The 
Power 
to  .Vmend 


304  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

be  a  difference  in  the  action  of  the  Federal  and  of  the  State  courts.  An  error 
of  the  State  court  in  the  interpretation  of  the  Federal  law  would  be  cor- 
rected on  appeal  by  the  Supreme  Court  of  the  United  States ;  whereas  the 
constructions  put  upon  the  State  Constitution  and  the  laws  of  the  State 
would  be  followed  by  the  Supreme  Court  in  so  far  as  they  were  not  incon- 
sistent with  the  Federal  Constitution,  witii  acts  of  Congress  made  in  pur- 
Fuance  tiuTCdf,  or  with  treaties  of  the  United  States.  In  matters  of  general 
as  (iistiiif^uished  from  local  jurisprudence,  the  Federal  Court  would  be  free 
to  decitle  tor  itself.  \et  would  be  inclined  to  accept  die  decision  of  the  State 
Court. 

That  there  might  be  no  doubt  as  to  the  supremacy  of  the  Federal  Con- 
stitution, the  acts  of  Congress  consistent  with  its  terms  and  treaties  of  the 
United  States,  it  was  further  and  wisely  provided  that  all  officers  of  the  States 
a>  well  as  of  the  United  States  should  bind  their  consciences  by  oath  or 
affmnatidu  to  sui)piirt  the  Federal  institution:  thus  making  it  not  merely 
supreme  on  paper  and  of  general  application,  but  sui)reme  in  fact  in  the 
special  and  concrete  case.  Thus  the  clause  of  Article  VI  immediately  follow- 
ing the  one  last  quoted  proceeds : 

The  Senators  and  Representatives  before  mentioned,  and  the  Members 
of  the  several  State  Legislatures,  and  all  executive  and  judicial  Officers.  l)oth 
of  tlie  United  States  and  of  the  several  States,  shall  be  bound  by  Oath  or 
Affirmation,  to  support  this  Constitution. 

Finally,  in  this  connection,  it  is  to  be  noted  that  the  Federal  Constitution 
was,  by  these  various  provisions,  made  the  supreme  and  fundamental  law  of 
each  State  of  the  Union  and  was  adopted  in  its  entirety  b\-  each  of  the  States 
ratifying  it.  Article  \',  concerning  amendments,  was  therefore  necessarily 
adojUed  as  an  integral  part  of  the  Constitution,  which,  in  providing  for  its 
amendment,  made  its  ratification  depend  not  merely  upon  the  .sovereign 
pleasure  of  any  one  State  but  upon  the  approval  (ji  f..ree-fourths  of  the  States 
of  the  L  nion.  It  was  therefore  beyond  the  power  of  any  one  State  to  change 
an  inta  of  its  fundamental  constitution,  except  in  conjunction  with  three- 
fourths  of  the  States.  .\n  attempt  to  do  so  would  be  illegal  and  could  only 
be  looked  upon  as  an  attempt  to  amend  this  constitution  in  a  method  contrary 
to  its  provisions.  It  could  not  be  done  according  to  the  law  of  the  land.  It 
could  only  be  done  by  revolution.  It  was,  after  the  formal  ratification  of  the 
Constitution  by  conventions  of  the  peoples  within  the  State,  immaterial 
whether  the  amendments  were  made  by  legislature  or  convention  within  the 
States,  inasmuch  as  the  supremacy  of  the  Constitution  had  been  established, 
and  inasmuch  a*  it  could  not  be  disestablished  except  by  the  votes  of  three- 
fourths  of  the  States,  in  which  event  the  will  of  three-fourths  of  the  States, 


AMENDME>fTS   AND   RATIFICATIONS 


305 


Mr '"MaJi""  "^,';'"7V°  ^'''"""*'  ^■'^"'•^'P'^'  ""'^'^^  'J^f^^  of  April  8.  1787    Ra.i«c.uo„ 
Mr  Mad,.on  outhned  the  principles  which  he  thought  shoul.l  L  contained 

n    he  new  Federal  pact,  and  expressed  the  opinion  that  "  to  give  the  new 
system  us  proper  energy,  it  will  be  desirable  to  have  it  ratif.ed  bv  tl  e  a    ho    t^ 
of  the  people,  and  not  merely  by  that  of  the  Legislatures."  '    ihis  pro 'sion 
therefore,  appeared  in  the  fifteenth  of  Mr.  Randolph's  resolution     an  1        "s" 
debatecl  at  large  an.l  in  detail  in  the  Convention,   'in  the  ses  ion  ;,       ,  h 

.t  appears  to  have  first  been  taken  up.  on  which  occasion  Mr    S      nan 

thought  such  a  popular  ratification  unnecessary:  the  articles  of  Con  e  le  a 
t.on  provuhng  for  changes  and  alterations  with  the  assent  of  CoT>  and 
rafficat.on  of  State  Legislatures."  Naturally.  Mr.  ^Lndison  as  the  author 
M  the  e  ause.  thought  -  this  provision  essemial."  saying  in  repl/  o  Mr  S    7- 


The  articles  of  Confcd".  themselves  were  (M^rtU-,.  ,„  ,i,- 
•n  .nany  of  the  States  on  the  Legislative    ancmi  ml  ?  T^''''  """r"^ 

Carohna  and  ,eorj,,a  votmg  ,or.  Connecticut.  New  York  and  New  Ters  v 
agamst.  and  the  delegations  of  Delaware  and  Maryland  divi.led.  On  u  v 
23d  three  <lays  be.ore  Air.  Randolph's  resolutions  as  amended  were  refe"  d 
to  the  Comnmtee  of  Detail  to  report  a  draft  of  a  Constitution,  the  ones  on 
agam  came  IxMore  the  Convention  and  was  very  carefullv  and  e  a  " 

consKlered.  Mr.  Ellsworth  of  Connecticut  mov^d  that  the  Consti  u  i  ^  ^ 
eferral  to  the  egus^atures  of  the  States  for  ratification  and  was  appropri  el^ 
seconded  by  Mr.  Patterson  of  New  Jersey.  In  the  course  of  the  Id  e 
M  ssrs.  Mason  and  Ma.lison  argued  strongly  for  the  submission  of  the  Con! 
stitution  to  convenfons  within  the  States.   Mr.   Ellsworth  stood  out   for 


ni=cu5s!on 
■'t    the 
M..,i,>  of 
Katihcation 


IThe  IVrilmfis  of  James  Madison.  Hunt  ed..  Vol.  II   n  340 
Documentary  History,  Vol.   III.  pp.   65-6.  ^' 


306 


THE   UNITED  STATES:   A  STUDY  IN    INTERNATIONAL  ORGANIZATION 


i*»*ti. 


pco 


submission  to  the  Legislatures,  and  the  reasons  pro  and  con  were  admirably 
stated.    Thus, 

Col.  Mason  considered  a  reference  of  the  plan  to  the  authority  of  tiie 
pie  as  one  of  the  most  important  and  essential  of  the  Resolutions.  The 
Legislatures  have  no  power  to  ratify  it.  They  are  the  mere  creatures  of  the 
State  Constitutions,  and  cannot  be  greater  than  their  creators.  And  he  knew 
of  no  power  in  any  of  the  Constitutions,  he  knew  there  was  no  power  in 
some  of  them,  that  could  be  competent  to  this  object.  Whither  then  must  we 
resort?  To  the  people  with  whom  all  power  remains  that  has  not  been 
given  up  in  the  Constitutions  derived  from  them.  It  was  of  great  moment 
he  observed  that  this  doctrine  should  be  cherished  as  the  basis  of  free  Gov- 
ernment. Another  strong  reason  was  that  admitting  the  Legislatures  to 
have  a  competent  authority,  it  would  be  wrong  to  refer  the  plan  to  them, 
because  succeeding  Legislatures  having  equal  authority  could  undo  the  acts 
of  their  predecessors ;  and  the  National  Gov',  would  stand  in  e.ich  State  on 
the  weak  and  tottering  foundation  of  an  Act  of  Assembly.  There  was  a 
remaining  consideration  of  some  weight.  In  some  of  the  States  the  Gov", 
were  not  derived  from  the  clear  &  undisputed  authority  of  the  people. 
This  was  the  case  in  X'irginia.  Some  of  the  best  &  wisest  citizens  considered 
the  Constitution  as  established  by  an  assumed  authority.  A  National  Con- 
stitution derived  from  such  a  source  would  be  exposed  to  the  severest 
criticisms.' 

Mr.  Madison,  as  sponsor  for  the  proposition,  added  the  weight  of  his 
authority  to  its  adoption,  saying,  in  his  own  summary  of  his  views,  that  he 

thought  it  clear  that  the  Legislatures  were  incompetent  to  the  proposed 
changes.  These  changes  would  make  essential  inroads  on  the  State  Con- 
stitutions, and  it  would  be  a  novel  &  dangerous  doctrine  that  a  Legislature 
could  change  the  constitution  under  which  it  held  its  existence.  There 
might  indeed  be  some  Constitutions  within  the  Union,  which  had  given  a 
power  to  the  Legislature  to  concur  in  alterations  of  the  federal  Compact. 
But  there  were  certainly  some  which  had  not;  and  in  the  case  of  these,  a 
ratification  must  of  necessity  be  obtained  from  the  people.  He  considered 
the  ditTercnce  betweei'  i  system  founded  on  the  Legislatures  only,  and  one 
founded  on  the  peopK  ,  to  be  the  true  difference  between  a  league  or  treat\, 
and  a  Constitution.  The  former  in  point  of  moral  obligation  might  be  as  in- 
violable as  the  later.  In  point  of  political  operation,  there  were  two  important 
distinctions  in  favor  of  the  latter.  1.  A  law  violating  a  treaty  ratified  by  a  pre- 
existing law,  might  be  respected  by  the  Judges  as  a  law,  though  an  unwise  & 
perfidious  one.  A  law  violating  a  constitution  established  by  the  people  them- 
selves, would  be  considered  by  the  Judges  as  null  &  void.  2.  The  doctrine 
laid  down  by  the  law  of  Nations  in  the  case  of  treaties  is  that  a  breach  of 
any  one  article  by  any  of  the  parties,  frees  the  other  parties  from  their 
engagements.  In  case  of  a  union  of  people  under  one  Constitution,  the 
nature  of  the  pact  has  always  been  understood  to  exclude  such  an  interpre- 
tation. Comparing  the  two  modes  in  point  of  expediency  he  thought  all  the 
considerations  which  recommended  this  Convention  in  preference  to  Con- 
gress for  proposing  the  reform  were  in  favor  of  State  Conventions  in  prefer- 
ence to  t!f  Legislatures  for  examining  and  adopting  it.' 


'  Pocuni.' 'itiir\  H'si  r\.  Vol.  iii, 
•/fcid,,  Vol.  iii.  pp.  410-11. 


^xamming 
p.  405. 


AMENDMENTS   AND   RATIFICATIONS  yff 

immmm 

LeRislatur.s\„uld  be-  more  dis^din  ^^i^.  "^'"  '"""  "'"  ^'""=  ^''^^•"-  '^e 
at  leas,  of  other  n,en  ;  an'l  f  3  ^  "  £,  couM  ","""'  '""T'"'  '"  P»^^ 
pro.n„,i„K,  hu.  really  .InvartinH       rl,  -  fi.,""  iV""'*'"  fPP'''*^"''^ 

■n  .he  Bills  o^u^S:^^^::^:i^^^^^^^  a  principle 
In  the  session  of  July  23d.  Mr.  Ellsworth  paid  special  attention  to  \Xr 

Crif  ^T  ;'^'  L^'^>-^'a.ures  thanTr  7l  e  ,"p  '""''*  "Jt'r^  '/  ^ 
Col.  .Mason  1.  that  the  Lepishtnr.-c  i,n,  I't'ipi-   ...  It  was  said  by 

their  successors  havim^.S Tu  [ori.^^^^^^^^^  U  """^"['7  '"  "^'^  "^'^^  ^  "'■•>' 
point  he  could  not  adn'^it  it  to  be  ve  found'  /''\""'  "'"■  "":''■  '^'^  ^°  "'«=  ^'■ 
their  Lepslatures.  n,ake  hen  se  ve  n^  ti  i'^K.;  '''"  '"  "''"^■''  "^'  ^'^'«'''  ''^ 
no  one  of  the  partie.  can  reced.  nf  Pt  '  ^      '"?  '"'  ^""'Pact  from  wliich 

that  a  new  sett' of  idea'  seS  to  havi  cr/nf  *°  '^'  ^"•,  •'°'"^-  ^'  observed 
fe<lera,ion  were  es.ablisln,  Ivnvn  ions  T,,"""  '^  '"•"■"'^'^•^  °f  ^on- 
dcnved  expressly  from  the  nennir    .  V""'  .'''"''''•  '"■   ""h   power 

latures  wetl  con^nl,.,";  as  ^rnSn,"'!^."? .I'^fl^. '^"'^ht  of.     The  L,is- 


jatures  were  cons-ciirK 
in  without  c'lm])!;!  m 


:.s  contpetent.    Their  ratification^ltas  been  V^qu^^^ 


Mr.  Ellsworth  was  correct  in  statintr  fhof  •>  „  ,  . . 

■  /6i<*..  p.  6S6. 
"  Ibid.,  p.  408. 


li 


>.>veri*i((n 
I'roplc 


«H^>6 


308  THE   UNITKI)   STATKS:    A   STUDY    IN    INTERNATIONA!.  ORfiANIZATION 

in  the  Virginia  bill  of  rights  of  June  12,  1776.  drafted  by  Mr.  Mason  himself: 

That  all  jxjwcr  i.s  vcste<l  in.  .md  constqijinily  derived  from,  the  people • 
that  nuKistratcs  are  their  tru.stees  and  servants,  and  at  all  times  amenable  to 
them. 

That  Kovernment  is.  or  oukIu  to  he.  instituted  for  the  c.nmion  In-nefit, 
protection.  ;ind  security  of  the  people,  nation,  or  community ;  .  .  .  .u,,!  that 
when  :iny  government  shall  be  found  inadequate  or  contrary  to  the  se  pur- 
poses, a  r  ijority  of  the  community  hath  an  indubitable,  inalienable,  and 
indefeas.  right  to  reform,  alter,  or  aMish  it.  in  such  manner  as  shall  be 
judged  must  conducive  to  the  public  weal.' 

And  the  new  set  of  ideas  was  thus  stated  in  the  De-rlaration  of  Independence 
adopted  by  the  Congress  of  the  L'nitol  States  on  July  4.  1776: 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created  equal, 
'hat  thf.-  are  endowed  by  their  Creator  with  certain  unalienable  Kiirbts  that 
amonK  tlR>e  are  Life.  Liberty  and  the  pursuit  of  Happiness.  That  to  secure 
these  riK.its,  (.overnments  are  instituted  ainonK  .Men.  derivinj;  their  iust 
powers  trom  the  consent  of  the  governed.  That  whenever  any  Form  of 
Oovernnun*  be  -omes  destructive  of  these  ends,  it  is  the  KiKbt  ol  the  People 
to  alter  or  to  aUjIish  it.  and  to  institute  new  Goveriinient,  laying  its  founda- 
tion on  such  priiuii)les  and  organizing  its  powers  in  such  form,  as  to  them 
shall  seem  most  likely  to  etTect  their  Safety  and  Happiness. 

In  accordance  with  these  ideas  the  Constitution,  to  bind  the  people,  should 
be  ratihcd  by  the  people  as  the  source  of  power,  not  bv  the  legislature  as  the 
agent  thereof.  This  was  the  view  of  the  Convention,  Expressed  immediately 
after  .Mr.  Madison's  remarks  of  July  23d,  New  Hampshire,  Massachusetts 
Pennsylvania.  Virginia.  North  Carolina.  Sotith  Carolina,  and  Georgia  vot- 
ing against  Mr.  Ellsworth's  motion  to  refer  the  Constitution  to  the  legis- 
latures of  the  States,  and  Connecticut.  Delaware  and  Maryla.id  voting  for 
the  mntion.  Xew  York  was  not  represented,  and  Xew  lersev  to..k  no  part  in 
the  vote.  ■         ■ 

The  letter  of  the  President  of  the  Convention  transmitting  the  Consti- 
tution with  its  reomimendation  that  it  .should  he  submitted  for  ratification 
to  cnnveiitinns  of  the  States  specially  called  lor  this  purpose  was  received  by 
the  Cnngress;  and.  on  SeptemIxT  28.  1787.  it  was  "  Resolved  Unanimously 
that  the  saul  Report  with  the  resolutions  and  letter  accomiianying  the  same 
be  transmittetl  to  the  .several  legislatures  in  Order  to  be  submitted  to  a 
convention  nf  Delegates  chosen  in  each  state  by  the  people  thereof  in  con- 
formity to  the  resolves  of  the  Convention  made  and  provided  in  that  case." » 
This  was  done,  and  in  the  course  of  that  and  the  ensuing  year  the  Constitu- 

I  Thorpe.  Charters  and  Conslitulions.  Vol.  7,  p.  3813;    Poore,  pp    1908-9 
UocumnUary  History,  Vol.  ii,  p.  i2.  '  *^^      ^°  '• 


AMENt.MKNTS   AND   RATIFICATIONS  JQQ 

tion  was  ratififd  by  conventions  hd.I  in  the  difT.-nnt  <,,-.,..     rt 

rn-c,„H  i„  ,H,  c„„„ ,"„;,"•„':•„:",;  ';'r'  7.«"':,  „?;  ;;■" 

Constitution,  or  "a.llure.l  to  it" --  u     ,  ^    "  '  '^''"l"'"''   <•'«; 

So-ne  of  the  S  a,.s  r  ,  ie     f^T r"  •'  "•■  '"  -'^•'■"■"'""••''  Pnrl.m.e 

culty  and  without  X  s^^l'oMr'T'''"  ""^'"";"-^'>-'  -'■■""t  ''i'^1- 
by  a  close  vote    with  .^re^t      ,>  •^"'^■"''"'^•"'^-     ""ht  States  ratitk.!   i, 

nients  to  the     on  tit  u  J     v      Tl    ■•  ""  ":  ''"'  '""^■''  '"•^'  -"-"  •■-"''- 

accordance  with  .h:  ^ L  ^  '  ^^'v  ,::'  TT'^'  '"  *"^  ''^"-  '" 
It  is  to  he  ohscrvel  howew-r  ..  .  .  \  ''^''^^■"f  ••^•'•"■"'r  to  amendments, 
accepted  in   its  em^'.v     t,       t"  f  ,^  "-'*'""""    -as    in    every   case 

a.th.!;.«hatone;r  s'^^c  er:;;:^:  t-; ""  ^'i""'"""'"'>'  -•"-'■ 

propositi.,.  r.,.„nel  FlannClXC  X  w  'V::^  r'  "  ^'-"^'"^^  ""^ 
hands.  con>nltcd  Mr.   .Ma,l,s„n    with    h.  \-  Convention   on    his 

hands.  The  latter  ended  wh^;  'l' ; L^^^C  i ';;T''*'''"/"  l"  '" 
statin,^  that  a  conditional   ratification    v,M  ^  "'""^:l '"•^^   ''ave  h.ul  I,y 

a  rejection.     Mr.  Ma.lison's  «a::';;:,:;;;'La::  "'  """"""  ^^  ^"^  ''"' 

be  ,;!^;SiTcin  ii.;:  r?:?;r::fi^<::'evr;^'"^"^v^--  '^  ---'^--^ 

>s  a  .■„„,///,•„„.;/  ratitkatio,  •  ;    ,,    '  C'">"tm>on  w,.h>n  a  c.Tt.un  tin.e. 

H.  ^^...  L-nion.  and  conse- 'S  tLf  ;;;;x'-^i;,  L  tt^i -:;t  ;^; 

t..at^a;;:;s:d::,::-j:;;: -:-:■■;-"*'•  '"--r'^  -  '•  ^""- 

perfect  Lnion,  and  althond,  \W   Mr  "  '  "'""'"''  "'  "'^"  "'"'•'-' 

concessions,  as  his  ^  ,f  L'  "'"""."^"  "'  ''  •■■^'"-  "'  "'-'  <-  -ake 

convention   ahnndaX":;:.;:^  '  ^r  ni;:;  1:'^^  ''""s"  '"^  ,^'^^^ 
decide  on  .,e  threshold  whether  it  shonl.;';:':^,,  el't;;:  L  ''"" 

and  that,  ii  ,t  decided  to  enter  and  acfnlK-  ,r  i  ,  ^  "'""• 

not  with.iraw     Mr   Ma.lison     I-  •  """■  "'"  ^  "*'^"-  '»  '^""'<' 

that,  as  the  o,.;!;- u  :^ ri;^:^^:;;:"''';^^"^^''^  '"^  """^^  ^^-"" 

the  States,   it  was  essential  tl  at  i    .  Y    T^''-" /^""'  ""^  raff.cati„„  l.y 

unconditionallv  m  ,^       "  ,  ' t    j!  iw"    f        -•"'"".'"  ''^  ^""^^•>-  ^""' 
of  a  universal' application  ^  "'  '  """■^''■^^'  ■"'^^T'-etati.n,  and 

the  i:;::-;;^:  ^  :;f  r  c.^;;- --t :  ■■:  ^""--'-  -^ 

New  Jersey  was  the  third  .„  point  of  time;  ^J  ^  ^^Z  ^  Z^Z 
'  Ibid.,  vol.  iv,  p.  803. 


Th« 

>|.irit  of 

lilt* 

KaiiiioUoat 


310 


THE   UNITED   states:    a   STUDV    in    international  •     '-.AVIZATinN 


w4*-a 


which  »howe<l  that  the  small  State*  were  satisfied  with  the  compromise  by 
virtue  whereof  their  e(|iiaiity  was  iiiaiiitaiiietl  ami  safci,'iiar<le(l.  The  second 
State  li>  ratify  was  tiic  rummiiiuvealth  ni  rfnii>\lvania.  It  is  to  Ik-  noted 
ho>vtvir  that  \viiile  the  I'liiixtitutidii  was  canifil.  tliere  was  a  sIT'iiik  niiiinrity 
opjHi'.eii  til  it.  The  variily  nf  a^K'n(l^lent^  siiK);e>teil  as  rcasniiaMe  hy  and 
accejitaMe  to  this  niitmriiy  apfH'ars  to  have  won  favor  not  only  with  the 
opponeiitN  nf  the  /(institution  in  other  States  hut  are  saiil  to  have  Uxn  the 
basis  iif  tlie  amendments  proixised  hy  Mr,  Madison  mi  June  <>,  1"S'>.  in  the 
first  se-i>>ion  of  tiit  first  (.'onjrress  of  the  Uniteil  States  iield  under  tlie  ("on- 
stitution. 

Delaware  ratified  December  7.  1787;  I'ennsylvania,  Decemljer  12,  1787; 
New  Jirsey,  December  18,  1787;  (ieor^ia,  January  3.  1788;  and  C'oniucticnt, 
January  9.  1788.  without  amendments.  As  previously  stated,  the  action  of 
Delaware  and  Xew  Jersey  was  unanimous.  In  I'ennsylvania  the  friends  of 
the  Constitution  had  a  cuiniortabk  niajority,  an<l  a  still  larger  majority  in 
Connecticut. 

One  ^reat  State  had  declared  itself.  Ma.ssachusetts.  the  second  of  the 
great  States,  adopied  the  t'oiistitu'ion  I'ehruary  7,  1788,  but  only  after 
a  hard  fought  contest  iiid  the  adoption  of  amendments.  The  adojition  by 
this  common'Atalth  prew  it  of  a  faith  and  confidence  that  amendments 
wniild  l)e  mailc  t"  the  Cronstitutioii  anil  that  the  particular  amendments 
which  t'"  .Massachusetts  C'onvention  recorrimended  would  l>e  laid  l)cfore 
the  Cotu  s-  Indeed  its  Senators  rnd  Re|)resentatives  were  instructed 
so  I'  {■>.  in  accordance  with  the  provision  of  the  Constitution  relalinp 
to  .:  sendmeiits.  This  methml  nf  acti  in  seems  to  have  satisfied  the 
.^rur  "-  "i  Mr.  John  Hancock.  President  of  the  Convention,  and  known 
t<  he  ni  t  nverf.ivnralile  to  the  Constittttinn.  He  had  been  President  of  the 
■  intinental  Conpres- :  and  the  lar(je,  bnlil  hand  in  which  he  sipned  his  name 
tn  ;he  [V-laration  >t  Independence  keeps  his  memory  green  among  his 
countrymi  n.  He  was  then  in  private  life,  with  an  eye.  it  is  said,  to  the 
gnvernorship  nf  his  State.  Snnu  ill-natured  persons,  enemies  of  the  great 
rraii.  thought  that  he  aspired  to  the  presidency,  in  tlie  event  thrr  N'irginia 
dni  not  titer  tin  more  jierfect  I'nion.  The  method  also  sai.ined  Mr. 
Samuel  .".  I.ams.  the  great  Uevolntinnary  leader  and  advocate  of  lemocracy, 
who  was  at  first  oppnscd  to  the  Constitution,  but  who  was  won  over  to 
its  support  by  the  recommendation  of  amendments.  The  action  of  Massa- 
chusetts was  important  not  merely  lierause  it  was  then  one  of  the  three  great 
States,  without  whose  support  the  Constitution  could  not  well  Ik?  put  into 
effect,  but  ^lecause  it  provitled  the  means  of  overcoming  opposition  in  the 
other  States,  especially  in  the  then  third  great  State  of  Virginia,  and  in 
New  York.     The  methcxl  of  recommendations  was  indeed  the  bridge  that 


I" 


yW^-Th, 


iM. 


AMENDMENTS    AND   RATTFICATIONS 


311 


carncl  the  c|n„N,„p  Thnma.cs  an.l  in  „mc  in,iances  the  opjx,ncnts  acro.s 
t..  the  uther  >„le.  It  .s  u„rthy  uf  n.,tc  that  after  the  action  of  Ma,,achusetts 
<.nly  one  „.  the  remainn,,'  S,ate>  rat.ne.l  wnhn„t  suRKestinK  amen.hnent*. 
I  .s  ap,,n,,,nate  t„  a.l.l  that  the  f.,ll„u>nK  U'.ter  frun,  (ieneral  VVa>h- 
.n,^on,  ,„!.h,he.l  n,  \  .r^una.  „,  lVnn,Mvan,a  an,l  in  a  Massachusetts  pa.KT 
.urn,,'  the  sessn.n  .„  ,he  Cunvention  „f  that  State,  ha,!  a  «rea.  effect  upon 
the  K."Kl  penph.  ,he.re.,f  an.I  nulnu,!  them  ,„  cncNiat.un.  hv  shown.,  them 

and  ,n  strat  aco.nlance  w.th  ,ts  express  provis.on.  concernn.^  amendment: 

suade.l    .    .    .that   „    (the  Cunstn„„„„|    or  d,.unio„   is"  hif're    ,  f '  he 

Marylan,!  ratified  without  supKestin,  amen.Iments  April  .?8.  \7m-  South 
Carohna  on  Nfay  -M.  17.SX.  and  in  v.ew  of  the  action  suhser,uently  taken  by 
that  State  the  material  portion  of  its  act  of  raftkation  is  quoted  ^ 

Pi^  their  rner'  "'''''''  '^  ''^'l"'*"'?"  "P°"  t'^"  states  to  assess,  lew,  and 
sta^e  h^nn.r-r  P:"P"«'0"*  '."  '^"ch  re.,ui.sitions;  an.l  in  case  any 
tion!  ttn  Cot  ss  n?. v'^^'r  ^'''  f  P-P°";-'"-  ?"""■-«"(  to  such  roqui"i^ 
with    merest  "iCon;-  ,h       V"']  '"'-'■  '"''"''  ''"'^'^  Pn-portion.  tofjither 

time  j;'^™:irpr:!;c?;,>::rhr;:.d/::^,p:;^^'"""'  p-  -"--  ^--  »»- 

'  Documentary  Histor\,  vol.  iv,  r.i   406-7 


^\ 


niffirliltii'v    of 

Katification 


312  THE   UNITED  STATES:  A   STUDY  m   INTERNATIONAL  ORGANIZATION 

Resolved.  That  it  be  a  standing  instruction  to  all  such  delegates  as  may 
hereafter  be  elected  to  represent  this  state  in  the  general  government,  to 
exert  their  utmost  abilities  and  influence  to  effect  an  alteration  of  the  Con- 
stitution, conformably  to  the  aforegoing  resolutions' 

South  Carolina  was  the  eighth  of  the  States  to  ratify,  but  the  Constitu- 
tion made  the  ratification  of  nine  a  prerequisite  to  its  going  into  effect  With 
the  ratification  of  Xew  Hampshire  on  June  21.  1788.  the  people  of  nine 
States  had  pledged  their  faith  to  the  Constitution,  and  it  had  become  the 
government  of  each  of  the  nine  and  of  the  Union  composed  of  the  nine 
The  influence  of  Massachusetts,  to  which  Xew  Hampshire  belonged  for  a 
long  time,  was  very  marked  upon  that  State  during  the  colonial  period  and 
the  influence  of  Massachusetts  did  not  cease  with  the  Revoluti.m.  as  the 
adoption  by  New  Hampshire  of  the  State  Constitution  an.l  of  the  Consti- 
tution of  the  l-nit«l  States  amply  disclosed.  When  the  Convention  met  in 
New  Fiampshire  in  February.  1788,  the  opponents  of  adoption  were  in  a 
slight  major.ty.  The  friends  of  the  new  government,  however,  were  able 
to  adjourn  until  June,  by  which  time  the  members  were  more  favorably  dis- 
posed, so  that,  after  four  days'  debate,  the  Constitution  was  ratified  by  a 
vote  of  57  to  47.  with  a  series  of  amendments,  as  in  the  case  of 
Massachusetts. 

The  acti(,n  of  New  Hampshire  inspired  the  supporters  of  the  Constitution 
with  confidence  as  well  as  hope,  as  it  would  be  less  difficult  for  the  States 
in  d.nibt  as  to  the  Constitution  to  join  the  more  perfect  I'nion  when  formed 
than  to  refuse  to  t.ike  part  in  its  formation.  It  is.  however,  doubtful 
whether  the  Union  would  have  been  formed  and  the  government  under  tlie 
Constinition  ha\e  gone  into  effect  in  1789  with  chances  of  .success  unless 
New  York,  in  a  way  the  dividing  line  between  the  eastern  and  the  middle 
States,  and  especially  if  Virginia,  the  great  domini.in  to  the  South,  had  not 
decided  for  better  or  for  worse  to  unite  themselves  with  their  sister  States. 
Had  the  latter  State  n<,t  done  .so.  the  world  might  have  lost  the  perfect  type 
and  model  ,,f  a  chief  executive  which  the  .\merican  peo])le  fotind  in  W.ish- 
ington,  who,  as  a  \irginiaii,  cnld  not  have  been  President  of  the  Union  in 
which  X'iru'inia  was  not  represented. 

Hiiwevei-,  X'irginia  ratified  the  Constitution  on  June  26,  1788.  but  five 
days  after  the  favoral)le  action  of  Xew  Hampshire,  liefore  the  action  of  that 
State  w.is  known  and  while  it  .appeared  that  Virginia,  in  addition  to  pro- 
posing the  Constitution,  h.id  by  its  .adherence  to  the  Union  made  it  operative. 
The  struggle  in  Vir,  Miia  was  a  -struggle  of  giants.  The  ratification  was 
opposed  by  Patrick  Henry,  the  most  famous  of  American  orators,  who  was 
appointed  a  member  of  tlie  Fc.leral  Convention  but  who  declined  to  ac- 
cei)t,  saying  somewhat  inelegantly  but  forcibly  that  he  "smelt  a  rat." 
"  Elliot,  Debates,  Vol.  I,  p.  325. 


AMENDMENTS   AND  RATIFICATIONS 


313 


i  .; 


I 

I    3 

i 


It  was  also  opposed  by  George  Mason,  a  member  of  the  Convention   who 
refused  to  sign,  primarily  because  Congress  was  not  restrained  by  a  two- 
thirds  vote  m  matters  of  navigation  and  because  of  a  lack  of  a  bill  of  rights 
and  of  whom  Mr.  Madison  said  "  that  he  possessed  the  greatest  talents  for 
debate  of  any  man  he  had  ever  seen,  or  heard  speak."  '    It  was  a  herculean 
task  for  the  quiet,  studious  and  unimpressive  .Madison  to  stem  and  to  over- 
come the  tide  of  such  opposition.     He  was  supported  without  the  Conven- 
tion by  General  Washington  and  within  the  Convention  by  Edmund  Ran- 
dolph who  had  refused  to  sign  the  Constitution  largely  liecause  he  felt  it 
should  Ije  submitted  for  revision  to  a  second  convention  which  he  now  saw 
to  be  impossible.     Mr.  Madison  was  also  aided  by  John  Marshall,  a  young 
and  vigorous  man  of  thirty-two,  destined  years  later  to  expound  the  Consti- 
tution from  the  Bench  and  to  make  the  more  perfect  Union  even  more  perfect 
through  a  series  of  masterly  decisions.     Yet  Mr.  Ma.lison.  insisting  that  the 
Constitution  be  read  in  its  entirety  and  that  each  clause  be  considered  in 
relation  to  ail  of  its  parts  instead  of  in  isolation,  was  able  to  show  that  the 
Constitution  did  create  a  more  perfect  Union  of  States,  just  as"  we  today 
believe  that  it  has  created  the  most  perfect  Union  of  States  ever  known 

The  vote,  however,  on  June  25,  1788.  was  close,  89  .klegates  voting'  for 
Its  ratification  and  79  against.    The  ratification  was  accompanied  l,v  .t  I.iH  of 
rights  of  twenty  articles,  and  the  bill  itself  by  twentv  other  amendments 
wh.di  were  to  be  presented  to  the  Congress  for  a.loption  as  ame.ulnient.  to 
the  Constitution     If  George  Mason  could  not  \mul  to  his  will  the  .lelcgates  of 
the  Philadelphia  Convention  and  impose  upon  them  in  cx|ire--s  term-  a  bill  of 
rights,  he  was  irresistible  in  X'irginia,  to  which  State  lie  had  given  a  bill  of 
rights  prefixed  to  its  Constitution,  which  is  today  a  model;  and  if  the  advo- 
cates ot   amendment  to  the  Constitution,   as  it  was   ultimately    fraiiie.l   in 
1  hiladelphia,   failed  to  impress  their  fellow  delegates  with  the  justness  of 
their  views,   the   Convention   of   Virginia   stood    s.piarely    for   amendment 
And  in  order  that  the  spirit  in  which  ti.e  Constitution  was  a.iopted  might  be 
known  and  understood  by  their  countrymen,  the  Convention  accompanied 
It  with  the  loilowing  declaration,  which  may  at  least  be  taken  as  evidence 
that  the  X'lrginians  liad  no  intention  of  degrading  the  State  into  a  province: 
We.  the  .leifgates  of  the  people  of  \-irginia,  dulv  elected  in  nursn.-mce 
ot  a  rccoiiimeiKJation  from  tlie  (ieneral  .\sscnil)lv.  and  now  met  in   Cnn- 
vent.on    having  fully  an<l  freely  investigated  and  discussed  the  nroce.din.'s 
of  the  l-ederal  Cunvention.  and  being  prepared  as  well  as  the  most  mature 
de  iberati.m  hath  enabled  us.  to  decide  thereon.-l)o.  in  the  name  and   in 
behalt  of  the  people  ot  Virginia,  declare  and  make  known,  that  the  powers 
granted   under   the    Constitution,    I.eing   derived    from   the    peoi.le   of    the 
Lnitcd  States,  may  be  resumed  by  them,  whensoever  the  same  shall  he  per- 
verted  to   their   injury   or  oppression,   and   that   every   power   not   granted 
•John  P.  Kennedy,  Mn"':rs  c-f  the  Life  .■/  irHium  irin,  1845.  Vol.  1,  p.  o54. 


1 


I  I 


¥B 


*^t 


Contest  in 
New  York 


314  THE  UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 

thereby  remains  with  them,  and  at  their  will;  that,  therefore,  no  right,  of 
any  denomination,  can  be  cancelled,  abridged,  restrained,  or  modified,  by 
the  Congress,  by  the  Senate  or  House  of  Representatives,  acting  in  any 
capacity,  by  the  President,  or  any  department  or  officer  of  the  United  States, 
except  in  those  instances  in  wliich  power  is  given  by  the  Constitution  for 
those  purposes;  and  that,  among  other  essential  rights,  the  liberty  of  con- 
science, and  of  the  press,  cannot  be  cancelled,  abridged,  restrained,  or  modi- 
fied, by  any  authority  of  the  United  States.  With  these  impressions,  with 
a  solemn  appeal  to  the  Searcher  of  all  hearts  for  the  purity  of  our  inten- 
tions, and  under  the  conviction  that  whatsoever  imperfections  niay  exist 
in  the  Constitution  ought  rather  to  be  examined  in  the  mode  prescribed 
therein,  than  to  bring  the  Union  into  danger  by  a  delay  with  a  hope  of 
obtaining  amendments  previous  to  the  ratifications,— We,  the  said  dele- 
gates, in  the  name  and  in  behalf  of  the  people  of  Virginia,  do,  by  these 
presents,  assent  to  and  ratify  the  Constitution  recommended,  on  the  17th 
day  of  September,  1787,  by  the  Federal  Convention,  for  the  government  of 
the  United  States,  hereby  announcing  to  all  those  whom  it  may  concern,  that 
the  said  Constitution  is  binding  upon  the  said  people,  according  to  an 
authentic  copy  hereto  annexed,  in  the  words  following.   .    .    .' 

The  contest  in  New  York  was  even  more  severe  than  in  Virginia,  and, 
indeed,  than  in  any  other  State ;  for  when  the  Convention  met,  the  opponents 
of  ratification  were  securely  in  the  saddle  under  the  presidency  of  George 
Clinton,  Governor  of  the  State,  and  under  the  leadership  of  Melancthon 
Smith,  who,  however,  shov/ed  himself  to  be  a  man  of  principle  and  as  such 
open  to  conviction.  The  friends  of  the  Constitution,  were,  however,  led  in 
a  masterly  manner  by  Alexander  Hamilton  who,  as  is  well  known,  took  a 
rather  in.significant  part  in  the  Philadelphia  Convention,  where  he  was  out- 
voted by  his  two  colleagues  before  they  withdrew  and  where  he  apparently 
had  little  sympathy  for  any  plan  proposed  by  others  and  not  much  confi- 
dence in  his  own.  Any  constitution,  however,  was  better  to  him  than  none. 
He  loylly  acceptea  the  Constitution  as  drafted,  as  the  best  that  could  be 
got  under  the  circumstances,  and  devoted  his  commanding  abilities  and  his 
energy,  which  proved  to  be  re'  less,  to  its  ratification  by  the  State  of  which 
he  was  not  a  native  but  wlit  if  he  is  today  the  most  distinguished  of  a 
long  line  of  distinguished  citizens. 

For  Colonel  Hamilton  it  was  not  enough  to  argue  and  d'.;bate,  and  by 
means  thereof  to  produce  conviction  within  the  Convention.  He  felt  the 
necessity  of  creating  an  atmosphere  without,  which  should  influence  opinion 
within  the  Convention.  For  this  purpose  he  planned  a  series  of  papers 
explaining  and  justifying  the  Constitution,  to  be  issued  at  rapid  intervals  in 
the  public  press  of  the  State.  With  him  in  the  undertaking  were  associated 
John  Jay,  who  contributed  five  articles,  and  Mr.  Madison  who  wrote  some 
twenty-nine.     He  himself  wrote  fifty-one  of  the  -ighty-five  articles,  which 

'  Elliot,  Debates,  Vol.  I,  p.  327. 


AMENDMENTS   AND  RATIFICATIONS 


315 


f 


!; 


taken  together  form  The  Federalist,  then  a  journalistic  venture,  today  the  Th. 
classic  exposition  of  the  Constitution.  Ftdmtui 

But  even  the  ability  of  Alexander  Hamilton,  John  Jay  and  Robert  R 
Livingston  within  the  New  York  Convention,  with  the  aid  of  James  Madison 
without  Its  doors,  might  have  proved  unavailing  had  the  stars  in  their 
courses  not  fought  for  the  Constitution.  The  first  week  of  the  session  in 
New  York  showed  that  two-thirds  were  opposed  to  ratification,  but  the  news, 
welcome  to  Hamilton  although  distasteful  to  the  majority,  that  the  ninth 
State,  New  Hampshire,  had  ratified  the  Constitution,  decided  that  the  experi- 
ment was  to  l.e  trie<l.  On  July  3d  the  news  of  the  ratification  bv  Virginia 
reached  the  members  of  the  New  York  Convention.  Should  New'  York  fail 
to  adopt  the  Constitution  it  would  be  surrounded  by  the  New  England 
States  on  the  East  and  New  Jersey  and  Pennsylvania  to  the  South,  and  it 
would  be  so  far  separated  from  Rhode  Island  and  North  Carolina,  which 
had  not  then  ratified  the  Constitution,  that  it  could  not  well  form  a  union 
with  them.  In  the  end,  Alelancthon  Smith,  leader  of  the  opposition  rose 
and  stated  that  he  would  vote  for  the  Constitution,  and  by  a  majority  of 
three  it  was  adopted  by  the  Convention,  "  in  confidence  that  the  amendm'ents 
which  shall  have  been  proposed  to  the  said  Constitution  will  receive  an 
early  and  mature  consideration,"  and  "  in  full  confidence  "  that  a  convention 
should  be  called  and  convened  for  proposing  amendments.' 

The  amendments  were  very  elaborate.  Their  character  may  be  judged 
by  the  opening  paragraphs  of  what  may  be  considered  the  preamble  to  the 
act  of  ratification,  in  which  it  is  .stated: 

That  all  power  is  o.iginaliy  vested  in,  and  consequently  derived  from 
the  people,  and  that  g.^vernnient  is  instituted  l.y  them  for  their  common 
interest,  protection,  and  security. 

.„  '^'''i  '!>*••  "ij°>'">f'"  "'■  'i'^'.  liherty,  and  the  pursuit  of  happiness,  are 
essential  rights,  which  every  government  ought  to  respect  and  preserve 

I  hat  the  powers  of  government  may  be  reassunied  by  the  people  when- 
soever it  shall  become  necessary  to  their  happiness;  that  every  power,  juris- 
diction, and  right,  winch  is  not  by  the  said  Constitution  clearly  delegated 
to  the  Congress  of  the  Lnited  States,  or  the  departments  of  tlie  govern- 
ment thereot.  remains  to  the  people  of  the  several  states,  or  to  their  resnec- 
ive  state  governments,  to  whom  they  may  have  granted  the  same:  and  that 
those  clauses  in  die  said  Constitution,  which  declare  that  Congress  shall 
not  have  or  exercise  certain  powers,  do  not  implv  that  Congress  is  entitled 
to  any  powers  not  given  hy  the  said  Constitution;  but  such  clauses  are  to 
De  coistrued  either  as  exceptions  to  certain  specified  powers,  or  as  inserted 
merely  for  greater  caution." 

The  adoption  of  the  Constitution,  however,  even  with  express  declara- 
tions and  a  series  of  recommendations,  was  a  concrete  victory  for  the  cause 

*  Ibid.,  Vol.  i,  p.  329. 
■  ll'id..  p.  327. 


£ 

1 

Efc 

ife 

B 

1^ 

.«■ 

■t 

1«^t, 


316  THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 

of  union,  inasmuch  as  it  assured  geographical  unity  and  that  the  authority 
of  the  Government  should  extend  from  New  Hampshire  on  the  north  to  the 
south  of  Virgmia.  Rhode  Island  was  on  th«  outskirts  and  could  not  affect 
the  Union;  and  North  Carolina,  between  Virginia  and  South  Carolina,  could 
not  resist  propmquity.  which  affects  even  the  union  of  States. 

A  Convention  called  in  North  Carolina  adjourned  August  4.  1788  with- 
out ratifymg  the  Constitution,  for  the  reasons  stated  in  its  resolution  of 
August  1st  of  that  month  and  year: 

.r.r^"t'"^\  '^Y  ^  'l^':'^':^''?"  °f  "ghts.  asserting  and  securing  fr„.., 
encroachments  the  great  principles  of  civil  and  religious  liberty,  and  the 
unalienable  nghts  of  the  people,  together  with  amendments  to  the  most 
arnbguous  and  exceptionable  parts  of  the  said  Constitution  of  government 
or*'m.  1  'I'll  ^'  °''^^°"Kress.  and  the  convention  of  the  states  that  sha 
their  ?,  nL  ,  "'  "'"  P"'''"'?  °^  amctiding  the  said  Constitution,  for 
the  r  consideration  previous  to  the  ratification  of  the  Constitution  afore- 
said, on  the  part  of  the  State  of  North  Carolina.' 

It  is  proper  to  say  in  this  connection  that  the  declaration  of  rights  pro- 
posed by  North  Carolina  consisted  of  twenty  Articles,  the  amendments  of 
twenty-six.     The  ratif  ation.  however,  of  eleven  of  the  thirteen  States    the 
formation  of  the  Union  and  its  successful  operation  without  North  Carolina 
and  Rh„de  Island,  caused  the  good  people  of  the  former  State  to  bethink 
themselves,  with  the  result  that,  on  NovemI)er  21.  1789.  the  people  of  North 
Carolina,  assembled  in  convention,  adopted  and  ratified  "  the  said  Consti- 
tution and  form  of  government."     And  on  May  29,  1790.  the  people  of 
T       e  Island,  in  convention  assembled,  likewise  adopted  the  Constitution 
^^       a  series  of  declarations  in  the  nature  of  a  bill  of  rights  and  of  amend- 
mems  almost  as  large  as  the  State,  which  by  this  time  had  come  to  the  con- 
clusion that  the  Union  was  more  neces.sary  to  it  than  it  was  to  the  Union. 
Thus  through  the  long  and  narrow  way  of  amendments  and  ratifications, 
the  cnur-e  ,,t  tlK'  C.>n>tituii..n  was  finally  fashioned.     State  and  Vmon  came 
to  their  (,wn.     Divergent  interests,  at  first  seemingly  irreconcilable,  merged. 
The  way  opened  for  the  United  States  of  America. 

'Elliot,  Debates,  Vol.  i,  pp.  331-2. 


XVI 


GOVERNMENT  SET  UP:  AMENDMENTS 


^oP^^-^^'l'rl^^cZ^::^.^^^^^^  Ooa:   Krank..n    looking 

observed  ,„  a  few  .ncnkr,  near  1  ,  n.      a,     ■a.ucrs  h    I   f ''''^  ^un  ha,,,xned   t,.  U-  panited! 
thoir  art  a  nsnig  from  a  ^ctti„K  sun         have    aid  h.      ft     "'     ,"  ?"'"""  '"  '''*'">8uish  in 
i>«s,„„.  an<l  the  vK-,..i,udes  of  mj   In.  ,e    ami     ea  s  .'^    '"  .''       "''"".  ''\  '^^  ^"""e  of  the 
'••■«''l^"t    without   heuiK  ahle  t„  t  ■!     wh e  1,1,   :,   L  ■  '"'"'•  '""■*"■•''  ="  "^at  beh.nd 

length  1  have  the  happiness  m  ktu.w  tha    u  .    a  ns inir  a.  d  n'",'*'  or  setting:     But   now  at 
Anus  „!  I, -bates  n,  the  Federal  Cmrcl,,,,  ,%  ,7V7  f-.     ■    ""'  \,*<^"'"K  Sun,     i  Madijon's 

the'^eSfe  oJ^rSttl'^:'at?n'°i?s''nIte't.,'sr'"'=  T^^'  "V="   -  '"^  -ve.eig.,.y  of 

he  Constitution   of   (he   U.    States    hHocnteS  ;.r     "■'.'  '"   ^'"''  '^""^"^-  ^'^cording  ?o 

he.r  individual  capacities  that  as  the  S  ate      n  their  ifi.!,';.    '""   "T"^  ^"''  ""^^   ^">'«  '" 

surrender  the   whole  sovercgnty   and    form   .h"  I.  **  '^**  ""•  '^'""' •  ""'•'  competent  to 

might  surrender  a  part  &•  retain    as  the    ™v     done   '.lu.'",';'  '  ^""'f 'l'"^'''   State.' so  they 

power  of  i;ov^,ar;i;Srthru~^^  ""^    L'     ^^-   has   allotted   the   supreme 

by  general  reservatfons ;  and  i  sovereign,  .'P'^^'^'.S^^""'.  Partly  to  the  individual  Sta^s 
...be  deci.led  is,  whether  the  allo°mem  1^  t,n  ^l^oTl/" ''"''■  ""•'  '"^  ""«''-" 
this  q,,estn,n  is  answered  bv  the  fac^    I  at  it  w.     „?     ?  ''^  competent   anthoritv,  and 

each    State    in    their   highes't    ^overnen    cl, -iViu  ^V''  ""'  "'"^'"".v  of  the  people  in 

people  composing   the   .State   in    t'l^^anari?.',  r""'"'' '•;'".  '"   =»    """"""-«.<    ac     of    the 

oa.,ard  „u,„.  Id....  77.  /,>.,5  j/r:'.  .,;i^:;;;;;,  ]'Tf^  Zo'^r^^r^^'  ;^ 
he  :ev/;ai's^;es'o^  nirL'iiir^::  ^i^^-^^i^^cif  ^),V'^,^'^'  r''-^''^''---^ 

poses,  the  slates  an.l  the  citizens    hereof   arJ  one    ?,,,  'i ''  '"'■      ''"■  ^'1   '""i-""/  p;ir- 

an<  governed  by  the  same  laws.  n  u  i  f,  ,.;  Js  ec  ,.','"''7.""  '''""'  ^•""^■'«"  ••""hority, 
and  independent  of  eaeh  other.  '■  Tluv  fo n7a  ',  ,,  J  ^  fT"  "'  "^■cc^sanly  /„r.-„;„  ,o 
states  retain  their  individual  sovcreiinities  i  ,  i  '  ,'^  "''''  K'^""nicnt :  vet  the  several 
are  to  eaeh  other  '"vere"^.'  ?  ^Tt  sV  '•  To  p7t''''."o*V''Tl^  T"""'^^  regulatnmt 
national  and  state  systems  are  to  be  regarded  as  ,,,•./,•'/  ..^.  '^;; J'..^^^''-  ^^"^  "The 
the  powers  of   sovereignty   are  divi.le.l   l^tween   tb     „n  ^  \^  ^  ■"^-     " '"   -^nienca, 

o  the  states.  They  are  each  sovereign  T,  resne, .,';!"'  f  •  ""^  '-"''^"'  =^'"'  ""-«= 
and   neither   sovereign   with   respect   to  tie   ohl^,'^  V'*"    °''''''^'''    committed    to    it  • 

Ofr  JusHce  Paldu.n.  A  (7r«r4/rf  -"■  „/,fc^'o!    "'""";^^':<^  ««  the  other"     4   \Vh    4lo' 

The  great   and    incurable    defect   nf   th»   ^^„t  j 
Kress   on    state    laws    to   e>^ecnte    and    .0    r,rr      ■   .''"^•<i°"    **'•    ^^^    ffepcndence 
fons:   genera -Iv   speaking    thfjurTsdic  ion   of 'ihe'^lH'^'"'!.  ''''^'^    resolutions    a.d 
except   as   to   tlie   re.nilation   of 'commerce  an  1    ii"        ''1       "'''   '"-*='"'    ''''    "' 
flebgate   the   po^^er   of   execution   to  "wraf!:.         i'"^'  .'-"'''"'•     The'  state.    ».. 
the  people  of  th.    states  gS  I^h  s  ,  o^er   hv  H."    '   ""   "^'   ''i^'"'''   "'   "^   J"^  - 
government   became   efficient   vdcomnetent  Yn,h  "'"J"'»""'l-    '>•  «''ich  alone  th, 
Bald-.Ao.  A  General  fie-t,  „f  ihl  ^"'!'P^*^"t   to   the   objects   of   its   creati-n       (  Mr 
of  the  rnited  Stages   tstrtP, 05  t^'.!^  ""''  '^'""'*'  "^  "'^'  C<'»^/.V«(.V.«  a«J  Cotv 


of  con- 
riipiisi- 

'■    same. 

iiild    not 

•!_clion: 
federal 
Justice 

rnment 


3"7 


.  A  -^rai' 


318 


THE  UNtTEO  STATES:  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 


In  this  outline  of  our  old  constitution  of  government,  we  i^e  the  pattern  of  our  ntw 
one,  though  with  a  difTerent  distribtitiun  of  powers :  the  ni<  t  important  of  those  which 
are  in  the  king,  by  prerogatiic,  in  England,  are  granted  tu  congress;  the  judicial  power 
is  vested  in  the  courts  of  the  United  States,  exclusively ;  and  the  executive  puwer  is  as 
much  defined  by  enumeration,  as  the  legislative  and  judicial  powers  of  the  constitution 
are.  Herein  consists  one  great  diflference  between  the  two  governments;  and  from  this 
there  arises  another,  which  is  all  important.  The  powers  not  delegated,  or  prohibited, 
being  reserved  to  the  states  respectively,  or  the  people ;  none  can  exist  by  prerogative,  or 
inherent  power,  in  any  branch  of  the  government.  (Mr.  Justice  Baldwin,  A  General  i'iew 
of  the  Ongin  and  Xalure  of  the  Conititution  and  Government  of  the  United  Slatet,  lHjy, 
PP-  54-55) 

This  change  was  effected  by  the  constitution,  which,  in  the  language  of  this  Court,  is 
a  grant.  "  The  grant  does  not  convey  power,  whi.:h  might  be  beneficial  to  the  grantor,  if 
retained  by  himself,  or  which  can  move  solely  to  the  benefit  of  the  grantee;  but  is  an 
investment  of  power  for  the  general  advantage,  in  the  hands  of  agents,  selected  for  that 
purpose,  which  power  can  never  be  exercis  d  by  the  people  themselves,  but  must  be  placed 
in  the  hands  of  agents  or  lie  dormant,"  9.  \Vh.  189.  The  language  of  the  constitution  is 
the  same.  "  All  legislalwe  powers  herein  granted,  shall  be  vested  in  a  congress  of  the 
United  States,"  &c.  "  The  executive  power  shall  be  vested  in  a  president  oi  the  United 
States  of  .America."  "  7"/i*  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court." 

Here  then,  there  is  something  visible  to  the  judicial  eye,  tangible  by  judicial  minds, 
reasoning,  illustration,  and  analogy;  intelligible  by  judicial  rules  and  maxims,  which, 
thrmigh  all  time,  have  prescnlied  its  nature,  effect,  and  meaning  It  is  a  grant,  by  a 
grantor,  to  a  grantee,  of  the  things  granted;  which  are,  legislative,  executive,  and  iudicial 
power,  vested  by  a  constituent,  in  agents,  for  the  enumerated  purposes  and  objects  of  the 
grant.  It  declares  the  grantor  and  constituent,  to  be  "  the  people  of  the  Cnited  States," 
who,  for  the  purposes  set  forth,  "ordained  and  established"  it  as  a  "constitution  for  the 
United  States  of  America;"  "the  supreme  law  of  the  land;"  creating  what  its  framers 
unanimously  named,  "  the  federal  government  of  these  slates."  Its  frame  was  "  done  in 
convention,  by  the  unanimous  consent  of  the  states  present."  The  7th  article  whereof 
declared  that.  "  the  ratification  of  the  conventions  of  nine  states,  shall  be  sufficient  for 
the  establishment  of  this  constitution,  between  the  states  so  ratifying  the  same."  And,  to 
leave  no  doubt  of  their  intention,  as  to  what  should  be  deemed  a  convention  of  a  state, 
the  members  thereof,  by  the  unanimous  order  of  the  convention,  laid  it  before  congress, 
with  their  opinions,  that  it  should  be  submitted  to  a  comvntion  of  delegai.-s  chosen  in 
each  slate,  l>y  the  people  thereof,  under  the  recommendation  of  its  legislature  ■,  for  their 
assent  and  ratification  1  Vol.  Laws  U.  S.  70,  71.  (Mr.  Justice  Baldwin,  A  Geiwal  View 
of  the  Ongiii  and  Xature  of  the  Constitution  and  Government  of  the  United  States,  1S37, 
pp.  1112.) 


These  colonics  were  not  declared  to  be  free  and  independent  states,  by  substituting 
congress  in  the  place  of  king  and  parliament ;  nor  by  the  people  of  the  states,  transferring 
to  the  Vnited  States,  that  allegiance  they  had  owed  to  the  crown;  or  making  with  the 
stale,  or  nation,  of  the  United  Slates,  a  political  connection,  similar  to  that  which  had 
existed  with   the  stale  of  (ircat    Britain. 

A  state,  to  be  free,  must  be  exempt  from  all  external  control ;  on  a  "'  separate  and 
equal  slalioit  with  the  other  powers  of  the  earth ; "  within  whose  territorial  limits,  no 
state  or  nation  can  have  .iny  jurisdiction:  this  is  of  the  essence  of  freedom,  and  being 
free,  in  the  grant  and  exercise  of  legislative  power  at  their  pleasure,  a  slate,  and  the 
people  thereof,  must  have  the  absolute  sovereignty,  illimitable,  save  bv  the  people  them- 
selves. Such  was  the  situation  of  the  states  and  people,  from  1776  till  1781,  when  the 
several  slate  leRislaturcs  made  an  act  of  federation,  ab  allied  sovereigns,  which  was  only 
a  league  or  alliance ;  and  bemR  utterly  defective,  was  substituted  by  a  new  act  of  federa- 
tion ;  a  constitution,  ordained  by  the  people  of  the  several  states,  in  their  primary  inherent 
right  and  pnwer,  cxistinR  in  themselves :  before  any  portion  of  its  sovereignty  had  been 
impaired  by  any  act  of  federation,  or  anv  severance  from  its  territorial  boundary  (Mr. 
Justice  IfaldTviii,  A  General  View  of  the  Origin  and  Nature  of  the  CD>iititMfi»«  and 
Government  of  the  I'nited  States,  1S37,  p.  ^9.) 

That  a  new  government  wai  necessary  was  the  universal  opinion ;  but  the  diffi- 
culty was,  in  .igreeing  what  additional  powers  should  be  given  to  congress  by  the 
surrender  of  the  states;  no  statesman  or  jurist  pretended  that  this  could  be  done  in  any 


If 


GOVERNMENT  SET  UP:  AMENDMENTS  319 

^h'e'a  !n*coni;emron7'""''^  '^  "^  "^^  "P-"^"*  «»'";  '"  '»"''  sovereign  capacity,  by 

^t^^cs^  T.:::„V''Lfr.ltXZTnV^  ""  of  conc„.ion,  from  ,he  several 

7  Cr.  33;  United  States  v    Hudson  ?nH  r^^     '    ^°™"-   «''«   '»""   expressly    reserves;" 

P^?\ot^c'^">^t'^trV»,hfZ^^^^^^^  ^,1^'  --K  of  the   separate 

state  has  made  the  grant,  has  declare  Tthe  law  o  the  ^n,!  "''  sovereign  power  of  the 
Its  own  laws  and  constitution  ■  has  commTmliHi,.  -a  "^'  »"P''>^^"'«^  '"  obligation  over 
tribunal  to  expound  U;  and  bound  LeU  to  a.  H^  hi  'h*"*"  '°  ^^'^  '*•  ''"'  appointed  a 
amendments.     (.Xfr.  Justice  CaldVn    J  n,f.ltl  ^^  '*'*T',  '°.^.  """^^  ''>'  "Iterations  or 

the/  fe  'Zrder?or"';rT  n'oro'nS^^nl.e^fs'l'a'^J'.Vt 'S?"  '"h^  ^°  '''  "'-'  '"  «''''^'> 
even  be  dangerous      They  would  rnnta?^^!,-*^        the  proposed  Constitution,  but  would 

on  ,h  ,  very^ccount/w7uld  al^d  a  ?oT,rable"preTex?\o  «""'^^  =  »"<' 

For  why  declare  that  things  shall  not  bt  Xne  wh7rh  .V.  r.  """'^  than  were  granted, 

mstance,  should  it  be  said  that  the  libe^tvnf  ,T,  !^r  '\'m"°  P"?""  »"  '^°'  ^^^V.  for 
power  .s  given  by  which  restnction,  may^ll^led '  "  ""Thr,^  ^"'^'''"^'>-  ^^-e"  no 
of  the  numerous  handles  which  would  be  ^iv^^^.h  .,'  .'  .^"'S  '"^y  serve  as  a  specimen 
the  indulgence  of  an  injudTciou,  zeal  for  bHIs  of  Hghts  '"'  "*  """^""■^■'=  P°w"s.  by 

afte?aM%rd;ciamation:  we  "avt  heard "that'fh'^r'"  -"=!"''«."'«  point.  The  truth  is. 
sense,  and  to  every  useful  purDose  a  bill  ok  ^,rT'"'Tu  "  '""'^  '"  ^'"y  """"" 
in  Great  Britain  form  its  consffion  and  rnL,«.l  ^.^"-  ^^^  .'"'""'  ^'"^  of  rights 
bill  of  rights.    And  the  prXsed  Con'sim,1inn    H  ,S^''!f  '^°.'''''*""on  of  eac,  State  is  its 

Article  I. 

fr^^J^rVL'^^L'^U^^^^^  of  --eligion.  or  prohibiting  the 

of.  the  people  peaceabl..    t,,   asfcmble    and  to  ne.ition  ,f  'r  '  "'  "'"  ^7"'  "^  'he  right 
grievances.  •  «'"Die,  ana   to  petition   the   Government    for  a   redress  of 

Article  II. 
.he  ^S^Z'"^!:i\^tir'^Zr%T^^^^^  °'  ^  f-e  State,  the  right  of 

Article  III. 

the^^i'tt^i  j2  ^n^cz  ^nT^r:^  ^  ^c^^^t^i^"*  ^^'  --'  °f 

Th      •  h      f   I,  Article  IV. 

unreasoiX  ^earchera^d  l^i^rrsZlir^T^AZZ-^-^^  ''T"'  '""  '^"'^-  '•^'"st 
upon  probable  cause,  supported  by  Oath  or  ^ffirmf.f'  ^""^T"  ^^  ?■•?"''  shall  issu.,  but 
Place  to  be  searched,  and  the  persons  or  things  ttbeseTz'ed"        P""'^"'"'y   -^^^ibing   the 

on  ayeYerme'n\''l'^nd,c?ml°nt''TrGrldN^^^^  ■"f.-"-  "'-.  unless 

or  limb:  nor  shall  be  compelled  in  ^^d^.f^l^^:r:f:j^-J::;^^jl  n^? 


i^i 


320  THE   UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

be  deprived  oflire,  liberty,  or  property,  without  due  oroccss  of  Uw;  nor  *hall  private  prop- 
erty be  taken  for  public  uie,  without  just  compensation. 

AmcLE  VI. 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime  shall  have  Iwen 
commuted,  which  district  shall  have  been  previously  ascertained  by  law,  and  in  be  informed 
of  the  nature  and  cause  of  the  accusation,  to  be  confronted  with  the  witnesses  against 
him;  to  have  compulsory  process  for  obuining  Witnesaes  in  hit  favor,  and  to  have  the 
Assistance  of  Counsel  for  hii  defence. 

AniOL  VII. 
In  suits  at  common  law,  where  the  value  in  c<mtroversy  shall  exceed  twenty  dollars, 
the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be  other- 
wise re-examined  in  any  Court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

Akticle  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual 
punishments  inflicted. 

Article  IX. 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people. 

Aancix  X. 
The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  prohibited  by 
It  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people. 

It  has  been  said  that  the  liberty  which  the  Anglo-Saxon  race  everywhere  enjoys  is 
derived  from  the  British  Constitution  as  settled  by  the  Revolution  of  1688.  All  subsequent 
revolutions  in  Europe  are  not  more  plainly  the  offspring  of  the  French  Revolution  than  was 
ours  of  the  Revolution  of  1688  It  was  founded,  like  that,  upon  a  breach  of  the  funda- 
mental law  by  the  rulers.  The  language  of  the  State  Conventions  at  the  time  of  the 
separation  from  England  shows  that  the  people  universally  regarded  the  liberties  for 
which  Ihey  were  contending  as  an  inheritance  from  their  forefathers  When  their  inde- 
pendence was  achieved,  the  object  of  the  people  was  still  to  preserve  under  the  new 
con<litions  these  ancient  liberties.  "  Upon  that  body  and  slock  of  inheritance."  to  adopt 
the  language  of  Burke  in  reference  to  the  Whig  leaders  of  1688,  "  they  took  care  not  to 
infjciijalc  any  scion  alien  to  the  nature  of  the  original  plant."  Although  the  framers  of 
our  Constitution  were  without  any  grasp  of  the  modern  conception  of  the  historical  contin- 
uity of  the  race,  they  revered  the  ancient  constitutional  traditions  of  England  And  thus 
It  comes  to  pass  that  Magna  Ghana,  the  Acts  of  the  Long  Parliament,  the  Declaration 
of  Right,  the  Declaration  of  Independence,  and  the  Constitution  of  1787  constitute  the 
record  of  an  evolution.  (/('.  T  Branlly.  Of  the  Influence  of  Eurofcan  Sfeculalinn  in  Ihe 
Foi-nialum  nf  the  Icderal  Constitution,  iSSo,  the  Southern  Lau.-  Review.  j\eu>  Series  I'ol 
n.  tSSr.tf-35'-S5i) 

The  first  ten  amendments  were  adopted  immediately  after  the  Constitution  Several 
States  had  ratified  it  upon  the  faith  of  the  pledge  given  by  the  Federahsts  that  such  amend 
ment^  wotiM  he  made  They  are  in  the  nature  of  a  Hill  of  Rights,  the  unwi:;e  omission  of 
which  from  the  Constitution  was  made  Ihe  subject  of  loud  complaint.  These  amendments 
recite  the  immemorial  privileges  of  Hritish  subjects,  and  employ  in  some  instances  the 
very  words  of  Magna  Ciarta  and  the  Declaration  of  Right.  (IV.  T.  Hrantly.  Of  the  Influence 
of  liurofean  Sfeculalinn  in  the  Formation  of  Ihe  Federal  Constitution,  l88o  The  Southern 
Lau-  fievicu.;  AVw  Series,  yd.  Vt,  tSSi,  p.  366.) 

The  several  agreements  in  England  for  better  secnring  the  rights  and  liberties  of  the 
subjects,  were  the  models  for  the  "  Bill  of  Rights,"  as  distinguished  in  some  ^tate  constitu- 
tions from  the  "  Frame  of  Government"  The  more  farsightcd  saw  this  distinction  to  be 
illusory,  and  justly  observed  that  the  constitution  was  itself  a  "Hill  of  Rights"  (James 
Hartey  Hobinson.  The  Orifiinal  and  Derived  Features  of  the  Constitution.  iSoo.  Annals 
of  the  American  Academy  of  Political  and  Social  Science.  1890-1801.  I'ol.  I.  />.  ^09.) 

In  its  chief  features,  then,  we  find  our  Constitution  to  be  a  skillful  svnthesis  of  elements 
carefully  selected  from  those  cnterinn  into  the  composition  of  the  then  existing  state  gov- 
ernments. The  Convention  "was  led  astray  by  no  theories  of  what  mujlil  he  good,  but 
dave  closely  to  what  experience  had  demons'trated  to  he  good."  (James  Harvey  Robinson. 
The  Original  and  Derived  .Features  of  the  Cnnstitutinn,  1890,  Annals  of  the  American 
Academy  of  Political  and  S.-7ciai  Science,  iSqo-iSq!,  Vol.  I,  />.  S4?.) 


il 


CHAPTER  XVI 

GOVERNMENT    SKT    LP:    AMENDMENTS 

It  was  foreseen  I,y  tl,e  menik-rs  of  the  Convention  that  if  a  constitution 
were  to  1.  forn.e.l  which  woul.i  n,cet  the  appnnal  ,.f  the  States  p  "" 
wo„M  „ece.>ar  y  elapse  between  its  a.loption  and  the  organization  o7  h 
go  ernment  under  Us  provisions.  In  the  meantime  the  Congress  of  the  Con- 
fe.lcrat.on  would  need  to  continue,  and  it  would  I.  required  to  take  measu  es 
o    nstuute  the  new  government.     The  twelfth  of  Mr.  Randolph's  re    U 

L"  J"  ^Tf  ''""'  "'"^  '^'''  'l"'^^*'""-  »"  the  efTect  that  "  pro  isi  n 
oug  to  be  made  for  the  continuance  of  Congress  and  their  authoritie  ^d 
pr.v  ie.es  untd  a  given  day  after  the  reform  of  the  articles  of  Union  shall 

of  Deta,  and  reported  by  ,t  on  August  6th  went  more  into  particulars,  ij 
no  wholly  to  the  satisfaction  of  the  Convention,  which  slightlv  amended 
and  adopted  the  twenty-third  Article  in  the  .session  of  August  .list    Tt  "vis 

strk^'fr'"!"  r"'  '■''*   ""  ''''''''•  ^'^•"^  °^  '  tcuporary   nature,  'be 
stncken  from  the  Constmit.on.  and  be  inclu.led  in  the  formal  Ict.er  of  the 
President  of  the  Convention  transmitting  the  Constitution  to  the  Congress 
in  which  document  it  is  thus  worded : 

That  it  is  the  Opinion  of  this  Convention,  that  as  soon  as  the  Conven 

.ons  of  „,„e  States  shall  have-  ratific-,!  this  Constitution,  tl    I ■,iLlS,ate, 

in    Con-rc>.s   a^^senil.Ud    should   fix   a    Ihv   on   wliirh    Klnlt,  .=    T      ti    u 

appointed  by  th.  States  w!,ich  shall  lave^rariLd    he  si,' ,7     f,l  n^  ' 

which   the   I- lectors  should   assemble   to   vo't^f  or  the     '  esi  It    a  d'' ,he 

Z  trr'^'T"?,  '''""'•'"  '""^■'■"'^  '-'^  "•^'  Time  and   PLnce  a     '  ne  I      ha 
the  .'Senators  should  appoint  a  Presi.lent  of  the  Senate    f.,r  tneio  e  P  r 

aTJr  I  e7,n  ,?■;""•  "^--^^■•'"4 'Counting  the  Votes  for  Pres.V)       :  Tn,    Zt 
with.,  t  n  ?  ""'?•  """  ^-""R'-'-'^s-  to.'J'-tlicr  with  the  President    sl„u  d 

without  Delay,  proceed  to  execute  this  Constitution.' 

Upon  the  ratification  ot  the  Constitution  by  the  ninth  of  the  States   the 
Congress,  to  which  the  Constitution  had  been  tran.smitte.l,  was  in  a  position 

'  Pncu^Kr-ntary  nUlury  of  th.-  CoHslilHlion.  Vol.  II,  pp.  20-1. 

331 


P*r 

Inltrim 


«i*M 


The  \«r 

Government 

Beffun 


322  THE  UNITED  STATES:   A   STUDV    IN    INTERNATIONAL  OICANI2ATION 

to  take  the  necessary  action.  Therefore  on  July  2.  1788.  it  was.  upon  the 
.uggest.on  of  the  President  of  that  body.  "Ordered.  That  the  ratifications 
of  the  constitution  of  the  United  States  transmitted  to  Congress  be  referred 
to  a  Com",  to  examine  the  same  and  report  an  Act  to  Congress  for  putting 
the  said  constitution  into  operation  in  pursuance  of  the  resolutions  of  the 
late  federal  Convention."  '  The  motion  passing  in  the  affirmative,  the  com- 
mittee to  which  the  ratifications  were  referred  reported  on  July  14  1788  — 
a  year  to  a  day  before  the  storming  of  the  Bastille,  ushering  in*  the  new 
order  of  things  in  the  Old  World-an  act  for  this  purpose,  which  was  adopted 
on  September  13.  1788.  in  the  following  form: 

Whereas  the  Convention  assembled  in  Philadelphia  pursuant  to  the 
resolution  of  Congress  of  the  21".  of  Feb)'.  1787  did  on  the  17"-  of  Sep' 
in  tlic  same  year  report  to  the  United  States  in  Congress  a.ssembled  a  con- 
stitution for  the  people  of  the  United  States.  Whereupon  Congress  on  the 
^K  of  the  same  Sept.  did  resolve  unanimous! v  "  That  the  said  report  with  the 
resolutions  &  letter  accompanying  the  same  be  transmitted  to  the  several 
legislatures  in  order  to  be  submitted  to  a  convention  of  Delegates  chosen 
m  each  state  by  the  people  thereof  in  conformity  to  the  resolves  of  the 
convention  made  and  provided  in  that  ca.se  "  And  whereas  the  constitu- 
tion so  reported  by  the  Convention  and  by  Congress  transmitted  to  the  scv- 
era!  legislatures  has  been  ratified  in  the  manner  therein  declared  to  be  suf- 
ficient for  the  establishment  of  the  same  and  such  r.itifications  duly  authen- 
ticated have  been  received  by  Congress  and  are  filed  in  the  Office  of  the 
Secretary  therefore  Resolved  That  the  first  Wednesday  in  lan»  next  be 
the  day  for  appointing  Electors  in  the  several  states,  which  before  the  ^^aid 
day  shall  have  ratified  the  said  Constitution ;  that  the  first  Wednesday  in 
fehv  next  be  the  day  for  the  electors  to  assemble  in  their  respective  states 
and  vote  for  a  president;  And  that  the  firs.  Wednesday  in  March  next  l)e 
the  time  and  the  present  seat  of  Congress  the  place  for  commencing  pro- 
ceedings under  the  said  constitution.'  ^ 

The  elections  were  held  in  the  States  which  had  ratified  the  Constitution. 
On  March  4,  1789.  the  government  under  the  Constitution  began  in  the  city 
of  New  York,  where  on  April  30.  1789.  George  Washington,  the  unanimous 
choice  of  the  electors,  was  inaugurated  President  of  the  United  States. 

The  great  purpose  for  which  the  delegates  had  assembled  in  convention 
throughout  the  summer  of  1787  was  accomplished.  A  Constitution  creating 
a  more  perfect  I'nion  of  the  States  had  been  formed,  and  the  government 
thereunder  organized.  But  the  apprehensions  of  the  States  which  had  rati- 
fied the  Constitution  with  much  diflficulty  and,  in  certain  cases,  with  no  little 
misgiving,  remained  to  be  satisfied.  If  the  declarations,  explanations,  and  pro- 
posed amendments  which  a-rcompanied  the  ratifications  in  some  instances 
did  not  create  a  legal,  they  nevertheless  raised  a  moral,  obligation  to  propose 

'  Ptirumentary  History,  Vol.  II,  p.  161. 
•/W.,  pp.  26i-4. 


:  :  '! 


GOVERNMENT  SET   VP .   AMENDMtNTl 


323 


amendments  to  the  Constit«ti„n  in  aca.nlance  with  its  provisions  in  order 
o  meet  the  expressed  desires  of  States  which  mi^'ht  not  have  ratified  the 
Constitution  without  assurances  amounting  to  a  moral  certainty  that  appro- 
priate steps  would  l)e  taken  to  this  end 

hehl  un.Ier  the  Constitution.  Mr.  Madison,  then  a  meml^r  of  the  llbuse  of   """" 
Kepresc-ntatives   from    \-,rK,n,a.  movc.l   in  that  iK.dy.   in  accordance  with 

Zr   "    '   .         '  '''  ''''  ■*."'  '"^'•''"'-  ""  -"-'-■■"-"  of  various  amend- 
ments to  tlie  Constitution.     In  support  of  the  motion  he  said: 

this  house  is  iKJund  l.y  evory  motive  of  pru.l.nce,  not  to  let  the  first  ses 
sum    );i>s  over  without  proposinir  to  tlie  state  !.■>  i«K...r^c       '"<^  ''r"  ""* 
he  i„c..rpor.nted  into  ,he'c..n'sti,u,^o„,  arwni^^.^^^^^^^^ 
niJiSitro/'lhl'''^  '"""*  ''''"''■  "^  ''  »^-  '-"  foundTcXublJ"*': 

?^iH"i-F- 

L  tilled   M.ites,  in   sonic  c:ises  unan  inciiKlt-    in  ..tl......   i      i  iniriitn 

r^::\;i:ir;d:ff -'"rt^ 

secZd'unde;  ;hi:'::„;]rtition''""'^  '"''''"  ""-'  «^-»'  "''""■^  "^  "-•^'"d 

Mr.  Madison  then  alhided  to  the  two  States  "  that  have  not  thought  fit 

..throw  themselves  ,„to  ,l.e  U.oin  of  the  cnnfe.leracv."  and.  savin,  on 

th.s  pu.nt  that   •  .t  IS  a  .iesiral.Ie  thing,  on  our  part  as  well  as  theirs',  that  a 

re-uiiion  sho.il.i  take  place  as  soon  as  possil.le."  he  predicted   if  tne.es 

•sluudxl  he  taken  at  that  juncture  which   were  .H.h  prudent  and   recpiishe 

hat  in  a  short  time  we  should  see  that  <lisposition  prevailing  in  thos 

whldi  l;:^""  ""'  """  '"•  '"^  ''"^  ''''''  •^^^"  P-^-^'""«  •"  ^^"-  state! 
•Uter  stating  that  all  power  is  subject  to  .-.luise.  and  admitting  that  it  was 
possiLle  to  guard  more  securely  against  possible  al.use  of  the  powers  granted 
to  the  genenil  gnvcrnnKnt  than  li.-.d  k-en  done,  he  sai.l  thJt  l.v  so  doitig 
they  l.a.l  s.,n,eth,ng  to  gain  and  nothing  to  lose.  While  unwilling  to  olTer 
amen.ln,ents  gouig  to  the  whole  structure  of  the  government,  he  was  never- 
theless willing  to  propose  such  as  seeme.l  likely  in  his  opinion  to  meet  "  w„h 
the  concurretice  of  two-thirds  of  both  houses,  a.id  the  approbation  of  three- 
fourths  of  the  state  legislatures,"  assuring  the  House  that  he  would  not 
propose  a  single  alteration  which  he  did  not  wish  to  see  made,  and  which  in 


The  Ct'iuirrsiional  Res'sler.  Vo!.  I. 


'  Ibid. 


p.  4^5. 


pp. 


434-5. 


'^1 


^\ 


l-r   ;■    lini 
of   Highti 


324  Tilt   UNITBn  •TATKS:   A   STtJDV    IN    INTMNATIOMAI.  fJHr.ANIZATION 

his  Opinion  was  "  intrinsically  proper  in  itself,  or  proper  because  it  is  wished 
for  by  a  ri'>|)cctal>le  numlier  "  of  hi-*  fellow  citizfii> 

Passing  to  the  objections  which  had  lieen  made  against  the  Constitution, 
he  said  that  they  were  of  various  kinds.  "  Some  were  levelled  against  its 
structure,  because  the  president  was  without  a  council;  tjecause  the  senate, 
which  is  a  legislative  liody,  iiad  judicial  jw.wers  m  trials  on  imiwachincnts; 
and  liccause  the  powers  of  tliat  Uidy  wen-  comjjountled  in  other  respects, 
in  a  manner  that  did  not  correspond  with  a  particular  theory;  l>ecausc  it 
grants  more  power  than  is  supiM.sed  to  be  neces>ary  for  every  good  purpose, 
and  controuls  the  ontiiiary  piwers  of  the  state  governments."' 

Ikit  Mr.  Madison  avowed  liis  Itilief  that  "the  great  mass  of  the  people 
who  opposed  it,  disliked  it  kcause  it  diil  not  contain  effectual  provision  against 
tlie  elKTMacllllu•tlt^  on  partmilar  rif^'hl-.  and  tluise  safeguards  which  they  have 
ken  long  accustomed  to  have  interposed  U'tween  them  and  the  magistrate 
who  exercised  the  sovereign  power;  lu.r  ought  we  to  consider  them  safe, 
while  a  great  numl)er  of  our  fellow  citizens  think  these  securities  neces- 
sary." That  is  to  say,  that  while  certain  provisions  of  the  Constitution  were 
objected  to,  the  great  criticism  tlirected  against  it,  as  a  whole,  was  that  it  did 
not  contain  a  bill  of  rights.  Such  a  bill  of  rights  was  necessary  for  the  pro- 
tection of  the  jK'ople  of  the  States  against  the  abusive  jMiwer  on  the  part  of 
the  general  government  making  it  clear  to  them;  although  it  seemed  evident 
to  Mr.  Madison,  tliat  the  powers  not  granted  to  the  general  government 
under  the  Constitution  were  reser\ed  to  the  States,  and  therefore  beyond  the 
reach  of  the  United  States  as  such. 

Mr.  Madison  further  declared  that  he  did  not  lielieve  in  the  necessity  of 
a  bill  of  rights,  but  that  he  considered  one  neither  impn.jKT  nor  altogether 
useless.  .\d verting  to  the  bills  of  this  nature  passed  by  tlie  States,  he  thus 
analyzed  their  content : 

"  In  some  instances  they  assert  those  rights  which  are  exercised  by  the 
people  m  forniinK  and  estal.lisliing  a  plan  of  government.  In  other 
instaiu-cs.  tluy  spicily  tliosc  rights  which  are  retained  when  particular 
powers  arc  ;,'iv.ii  uj)  to  W  exercised  by  the  legislature.  In  other  instances, 
tluy  -\Hxiiy  positive  ri^jlits,  which  may  seem  to  result  from  the  nature  of 
the  oimiKK-t.  ...  In  other  instances,  th.v  lav  down  (loi,'niatic  maxims 
Willi  iesi>ect  to  the  construction  of  the  government;  declaring,  that  the 
legislative,  executive,  and  judicial  branches  .shall  be  kept  separate  and  dis- 
tinct.  ... 

Milt  whatever  may  tx-  [the]  form  which  the  several  states  have  adopted  in 
niaking  declarations  in  favor  of  particular  rights,  the  great  object  in  view 
IS  to  limit  and  (|ualify  the  i>owers  of  government,  hv  excepting  out  of  the 
grant  of  power  those  cases  in  which  the  j,'overnmcnt  ouRlit  not  to  act.  or 
to  .-ict  only  in  a  particular  mode  1  hey  point  these  exceptions  sometimes 
against  the  abuse  of  the  executive  power,  sometimes  against  the  legislative. 

1  iu  i  fiii/rtSM.itiai  l\ci/i.\lir,  \'(il.  i.  p.  426. 


^ 


^ 


OOVKINMKNT   SET   UP;    AMENDMENTS  OS 

and.   in   some   case*.  agaiiLsi   tlir  cuMiiiunity    itself;   or,    in   (;ihcr   words 
BKainst  the  nukjunty  in  favor  of  ilic  minority."  ' 

Withuut  ttumuratiiiK  the  amcmlments  wliicli  Mr.  Madison  proixised. 
which,  for  the  nioM  pari  wi-rc  .idoijlfd  in  Mil.^tame.  if  ii..t  in  lurni,  there 
is  one  matter  u|H)n  which  his  exact  lanf^na^c  slu.uld  k-  <|u.)tfd.  as  it  deals 
with  the  relation  ni'  tlic  States  to  tin  L'inon  and  the  powers  which  they 
apparently  th(.ii);hl  they  reserved  from  the  grant  to  the  general  Kuvernnient. 
On  this  |H)int  Mr.  Madison  said: 

"I  imd,  from  l(>okin>;  into  the  amendments  proiioscd  hv  the  state  coi; 
yentidiis,  that  srviral  are  partiiiilarly  anxious  that  it  slio'uM  he  .Icclared 
m  the  idiistitution.  that  the  powers  not  tlurein  dekr:iliil.  >lioiil<l  be 
reserved  to  the  several  states.  Perhaps  words  which  may  deline  tliis  in.  ,e 
precisely,  than  the  whole  of  the  instrument  now  iloes,  may  !»■  .nnsMUTed 
as  superlluous,  1  admit  they  may  he  dei-iiud  umiecessarv;  Imt  (here  r:in 
be  no  harm  in  making  such  a  declaration,  if  Renflenun  will  allow  that  the 
fact  IS  as  stated.  I  am  sure  1  understand  it  so,  and  di>  therefore  in.i- 
pose  it."'  ' 

After  some  discussion  Mr.  Madison's  motion  was  referred  to  a  drnx- 
mittee  of  the  Whole  on  the  state  of  the  Union.  On  JiiK  Jlst  wluii  he 
brouKht  the  question  of  amendments  again  to  the  attention  of  the  House, 
it  was  ordereii  after  debate,  "that  Mr.  Machxin's  ni  ,ii.in.  statniL:  ci-rt.un 
specific  .amendments,  proper  to  \>t  proposed  hy  coiiL're>^  to  the  le^'il.ifiires 
of  the  states,  lo  beccmie.  if  ratitie<l  by  three-loiirili-  iliereof.  ;ia',  ■<  li.e 
constitution  of  the  I'nited  States.  tof,'ether  with  the  .iii'endir.eitls  to  :l,e  said 
constitution  as  proposed  by  the  .several  slati  ■;,  to  Ik.-  reierrol  to  .i  committee. 
to  consist  of  a  mendier  from  each  state,  w  ;ii  instruction  to  take  the  subject 
of  amendments  to  the  constitution  of  the  United  States.  ),'eneralK  into  their 
consideration,  and  to  rciM)rt  fliereupon  to  the  hi>ii>e."  ' 

On  July  J7th  the  Committee  reported,  and  he  rciiort  was  ordcnd  to  lie 
on  the  t.able.  On  August  13th  the  House  took  up  the  report  >\  the  Com- 
mittee and  debated  it  continuously,  during  the  course  of  which  other  amend- 
ments were  proposed.  On  August  22nd  an  agreement  was  reacheil  upon 
the  amendments  to  be  submitted,  .and  on  the  24th.  a  committee  apji.  nited  for 
rearrangement  of  the  articles  ,'  amendmenf-  to  the  Constitution  ,i-  agreed 
to  on  the  21st,  presented  its  rei  .irt  with  the  following  resoh  'ion  t<.  be  pre- 
fixed to  them : 

Ecsolvcd,  by  the  senate  and  house  of  representatives  of  the  United 
States  of  America  in  Congrcf.s  assembUd.  two  [liird>  of  both  iwHisi  ~  (iiiin- 
ing  it  necessary,  that  the  following  articles  be  proposed  to  th(<  legisla'ures 


Ktlitlon 
•  r  si.ilM 
t  >  tli> 

I    IIWII 


>/ft.-,/.  pp.  4.W-1. 
•  Ihid..  p    4.Vi. 


u 


'  n-id. 


\'. 


p.  111. 


..     r  r 


AmendnieDtf 
Before 
the  Sentta 


1«1«t. 


326  THE   UNITED  STATES:  A  STUDY  IN   INTEENATIONAL  ORGANIZATION 

of  the  several  States  as  amendments  to  the  constitution  of  the  United  States 
all  of  any  of  wh.ch  articles,  when  ratified  by  three  fourths  "the  S 

The  House  immediately  transmitted  the  proposed  amendments,  seven- 
teen m  number,  to  the  Senate  for  their  consideration,  where  they  were 
received  on  the  25th.  and  considered  on  September  2d.  4th.  7th.  and  25th 
The  Senate  as  the  result  of  conference  concurred  in  the  amendments  pro- 
posed by  the  House  of  Representatives  to  the  amendments  of  the  Senate 
and  the  followmg  twelve  were  transmitted  by  the  President  of  the  United 
States  to  the  Executives  of  the  eleven  States  which  had  ratified  the  Consti- 
tiifon.  and  likewise  to  those  of  the  States  of  Rhode  Island  and  North 
Carohna. 

Ar.^r**''?  A*'^'?''^*-.-  •  •  ^^*"  •»'*^  fi'-st  enumeration  required  bv  the  first 
Article  of  the  Constitution,  there  shall  be  one  ReDrespnta.3  fr.,  ^    me  Jirst 

thousand  untjl  the  number  shall  amount  to'n^Zndd^rf^^'whirThepr? 
portion  shall  be  so  regulated  by  Congress,  that  there  shall  not  be  less  t  nn '^^e 
hundred  Representatives,  nor  less  than  one  Representative  for  e very  for?v 
thousand  persons,  until  the  number  of  Representatives  shill  nmnnn.  ^.  ?  ^ 
hundred,  after  which  proportion  shall  K" V^SteJ^y To„Zss°  th'at 

there  shall  not  be  less  .:,an  two  hundred  Representatives,  nor  more  , ha;  one 
Representative  for  every  fifty  thousan.l  persons 

Article  the  third.    .    .    .   Congress  shall  make  no  law  respecting  an  estah 
lishment  o    religion,  or  prohibiting  the  free  exercise  thereof  for  abridging  ?he 
freedom  of  speech,  or  of  the  press;  or  the  right  of  the  people  DeSi  to 
assemble   and  to  petition  the  Government  for  a^edress  of  grWances        ^ 

Ancle  the  fourth.    ...   A  well  regulated  Militia,  being  necessary  to  th  ■ 
rfrinfH;:.^'^  ''''''•  ''^  "^'^^  °^  ^'^  ^^^'^  »-  "^-P  -^  CTmsl'^shal. 

Article  tlu;  fifth.   ...   No  Soldier  shall,  in  time  of  peace  be  quartered  in 

n!;mr";:-br;ie:;ri£rs  °^  ''^  °™'  --  *-  ^^^  °^  --  ^^^ 

supportyl  by  fXath  or  affirmation,  and  particularly  describing  the  place  to  b^ 
searclud.  an<l  the  persons  or  things  to  be  sci/ed 

-Article  the  ^,.ventb.   .  N\,  person  shall  be  hel<l  to  answer  for  a  canital 

or  otherwise  in,an,o,is  crime,  unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,  except  in  cases  arising  m  the  land  or  naval  forces,  or  in  the  Mil  tin  when 
m  actual  service  in  time  of  War  or  public  danger;  nor  shall  any  ner;on  be 
subject  for  the  same  ofTence  to  l>e  twice  put  in  jeopardy  of  fe  o'r  bmb  nor 
shall  be  compelled  m  any  criminal  case  to  be  a  witness  against  himse      nor^ 


^Congressional  KctV.itrr.  \',^],   U. 


p.  2S9. 


GOVERNMENT  SET  UP:   AMENDMENTS 


327 


deprived  of  life  liberty,  or  property,  without  duu  process  of  law;  nor  shall 
private  property  be  taken  for  public  use.  without  just  compensation. 
.„;  i  ■  u  '">'^"'-  •  /  •  '"  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  of  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  commiued.  which  district  shall 
have  been  previously  ascertained  by  law.  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the  witnesses  again"  him  "o 
have  compulsory  process  for  obtaining  witnesses  in  his  favor;  and  to  1  av^  tl  e 
Assistance  of  Counsel  for  his  defence. 

Article  the  ninth.  ...  In  Suits  at  common  law.  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be7res"rvcd 
and  no  f.-ict  tried  by  a  jury,  shall  be  otherwise  re-examined,  in  any' Court  of 
the  I  mted  States,  than  acconiing  to  the  rules  of  the  common  law  ^ 

Article  the  tenth.   .    .    .   Excessive  bail  shall  not  be  rc-quircd.  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted  exctss.%c 

ri^htc'c^i  'ii      .'"I''"'"""'-   •    •.  •  V'"  enumeration  in  the  Constitution,  of  certain 

^  5ii    hT  t^mu'"'"''^  ^^u'"y  °'  ^'^P^-'^S^  °''^^"  '''^'^"''<^  hy  the  people 
Article  the  twelfth.    .    .    .The  powers  not  delegated  to  the  United  States 

sLes're^ni:'!""',"'"'  ""^  ^^^'^'^'^  ^^  ''  '°  **>«  ^'ates.  are  reserved  to  the 
States  respectively,  or  to  the' people.' 

Mr.  Madison,  who  is  to  be  regarded  not  itierely  as  the  father  of  the  Con- 
stitution but  as  the  initiator  of  the  amendments  to  that  instrument,  had  pro- 
posed that  the  amendments  themselves  should  not  onlv  modify  the  sense  of 
the  Constitution,  but  that  they  should  be  incorporated  in  the  text  in  lieu  of 
the  rejected  matter.  But  fortunately  the  view  prevailed  tliat  the  text  of 
the  instrument  should  be  preserved  inviolate,  and  that  the  amendments  in 
the  form  of  articles,  should  be  added  to  its  text.  It  is  perhaps  also  of  inter- 
est to  add  that  the  amendments,  reasonable  and  acceptable  in  themselves, 
proposed  by  the  opponents  of  the  Constitution  but  rejected  by  the  majority 
of  the  Convention  of  Pennsylvania  called  to  consider  that  instalment,  are 
alleged  to  have  been  the  source  of  Mr.  Madison's  propositions.' 

Of  the  twelve  amendments  submitted  to  the  States,  the  first  two  failed 
for  lack  of  the  required  majority,  but  the  remaining  ten  were  adopted  and 
lorm  the  first  ten  ameiulmcnls  to  the  Constitution  of  the  United  States 
Submitted  as  they  were  by  the  first  Congress  under  the  Constitution  and 
adopted  within  two  years  thereafter,  they  can  be  considered  as  the  authorita- 
tne  and  contemporaneous  interpretation  of  the  States  of  the  Union  in  the 
matter  of  their  relation  to  the  government  of  the  Union,  which  the  States 
iiad  created  by  vesting  it  with  certain  powers  whereof  they  diveste.l  theni- 
I  ''ncumcniary  History,  Vol.  II,  pp.  321-4. 

I  icy  arc  hftccn  m  iiumlicr.  and  are  rcmnrk.iMc  !t<  rnnlninine  |lie  snlKt-.-.-P  „f  tl,..  .»„ 

s  '"■ihorc'^7,n'',f  1 '"''"'  •"  ?*"  9^-'""»i?"-  sin,il."rT.^^o^'„;Vk  "^  ;;:,^ ,;;/,  ••nccT 

ocmal.       Ihorc    is    inii.li    reason,    llienfore.   to   l,e  icve    that    when    Mr     \1t1N.v,     in    rso 
b-tLT;";''"''!"  ;"'■';■''  ''''  ^'"=  ".'^"^'^  °f  Representatives,  hrmade  i,se  :   '    h  Ae  otTered 


Power!  not 
Oclrgatcd 
are  Kcwn-ed 
to  the  States 


^^^L 


328  THE  UNITED  STATES:  A   STUDY  IN  INTERNATIONAL  ORGANIZATION 

selves.  The  ten  amendments  are  in  their  entirety  limitations  upon  the  gen- 
eral power  of  the  Government.  The  ninth  and  tenth  cannot  be  too  often 
pondered  by  those  who  would  unJerstand  the  nature  of  the  more  perfect 
Union  created  by  the  Constitution,  and  who  would  like  to  see  som-thing  of 
the  kmd  obtam  in  the  society  of  nations.    They  are  therefore  quoted: 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  con- 
strued to  deny  or  disparage  others  retained  by  the  peop  e.     (Ar°U:le  !X  ) 

The  powers  not  delegated  to  the  United  States  by  the  Constitution  nor 
Thf^eS-'^ASe  XO""'  '''  ^""^"^^  '°  ''^  ^'-"  respecliSrorTo' 

It  is  believed  that  there  would  have  been  little  opposition  within  and 
without  the  Federal  Convention  to  a  bill  of  rights  composed  of  the  matters 
included  within  the  first  ten  amendments,  which  are  themselves  in  the  nature 
of  a  bill  of  rights.  It  is  not  too  much  to  say  that,  if  such  a  curse  had 
been  taken,  opposition  to  the  Constitution  would  have  been  largely  dis- 
armed, if  not  rendered  wholly  powerless.  The  truth  of  the  matter  seems 
to  be  that,  as  always  happens  in  an  international  conference,  the  discussions 
moved  in  a  leisurely  way  at  the  beginning;  that,  in  the  course  of  its  sessions 
propositions  were  made  and  discussed  in  such  numbers  as  to  impede  prog- 
ress; and  that,  in  the  closing  days  of  the  session,  the  members,  in  sheer 
desperation  to  do  something  to  justify  their  calling  and  to  adjourn  within 
a  reasonable  period,  became  e.xcited.  not  to  sav  irascible;  and  that  tliey  re- 
jected mi  isures  which  they  would  otherwise  have  adopted,  on  the  ground  that 
they  were  unnecessary  or  that  their  adoption  would  unduly  prolong  the 
session,  notwithstan.ling  the  fact  that,  if  unnecessary,  it  would  not  hurt  to 
adopt  them,  especially  as  their  adoption  would  tranquilize  the  minds  of 
their  proposers. 

Mr.  Mason's  proposal  for  a  bill  of  rights.— and  perhaps  as  the  framer 
of  the  Virginian  Bill  of  Rights  he  appeared  to  his  colleagues  a  trifle 
obsessed  with  its  importance,— received  scant  consideration,  made  as  it  was 
in  the  closing  days.  On  September  12th  Mr.  Mason  stated  that  "  he  wished 
the  plan  had  been  prefaced  with  a  Bill  of  Rights.  &  would  second  a  Motion 
if  made  for  the  purpose— It  would  give  great  quiet  to  the  people;  and  with 
the  aid  of  the  State  declarations,  a  bill  might  be  prepared  in  a  few  hours  " ' 
The  Convention,  however,  made  .short  shrift  of  the  proposal,  and  after 
other  observations  in  the  nature  of  remarks,  the  proposal  made  by  Mr 
Gerry  of  Massachusetts  and  seconded  by  Mr.  Mason  wa.s  negatived  by  ten 
of  the  eleven  States,  with  Massachusetts  abstaining. 

The  spirit  of  the  Convention  at  this  time  is  perhaps  best  shown  by  the 
'Documentary  History,  Vol.  III.  p.  734. 


■I 


GOVERNMENT  SET   UP:   AMENDMENTS 


329 


i 


action  of  the  Convention  on  the  15th.  when  a  proposal  was  mac'.  Miat  an 
address  should  be  prepared  to  the  people  to  accompany  the  Con^.Ku-ion. 
masmuch.  as  stated  hy  its  proposer,  as  "  tiic  people  had  Ijeen  accustomed  to 
such  on  great  occasions,  and  would  expect  it  oh  this."  To  this  proposal 
Mr.  Rutledge  of  South  Carolina  objected,  "  on  account  of  the  delay  it  would 
produce  and  the  impropriety  of  addressing  ,},e  people  before  it  was  known 
whether  Congress  would  approve  and  support  tl-.e  plan."  The  morion  was 
rejected  by  a  vote  of  si.x  States  to  four,  with  North  Carolina  abstaining.' 

Many  years  alter  the  adjournment  of  the  Convention.  Mr.  Madison 
speaking  of  the  method  of  electing  the  President,  said,  in  a  letter  dated 
August  23,  1823,  addressed  to  Mr.  George  Hay: 

As  the  final  arrangement  of   it  took  place  in  the  latter  stage  of  the 

ducTu  iT  "°'  ?""P'  '""'  *  '^^K'""'  "f  t'^^  hurrying  inflifence  pro! 
duced  by  .itigue  and  impatience  in  all  such  Bodies,  tho'  the  deeree  wa^ 
much  less  than  usually  prevails  in  them."  ucfcree  was 

The  general  view  on  the  subject  of  a  bill  of  rights,  at  least  the  view  of  the 
moderate  refomiers,  is  best  ".^pressed  hy  Washington  in  a  letter  to 
Lafayette,  dated  April  28.  1788,  in  which  he  says: 

There  was  not  n  nieniluT  of  the  conv.mtion,  1  believe,  who  had  the  leist 

o  "•'•  an  r-\:  i  ';;,"  ■"  '''^r''  "•■'■'"'  r^  "P-  ^'^-^  considered  nuga^ 

tor\        .       and.  .is  to  the  second,  it  was  onlv  the  diffcultv  of  est-ihlishino 

Writing  many  years  after  the  event,  Mr.  Madison  himself  used  the  following 
language  in  a  letter  dated  Xovemlier  27,  1830.  addressed  to  Mr.  Andrew 
Stevenson,  which  states  better  than  any  amount  of  argument  Mr.  Mason's 

C3.SC  * 

name  and  in  the  nature  of  ••Dcclaa?K>nso"^dnr-  ^iTf  ""-'^r '^' 
inc  a  icalousv  of  ilw.  f,.,i,..-,i  ..  "-'"''"""^  "■  Kigi;ts     ,  all  ot  them  indicit- 

No  less  than  sever,  .^tatcs.  it  appears,  cun.urred  in  adding  to  tlieir  rati- 


'  Ihiil..  Vo],  iii,  p,  749 

•  FnrH"T'i"T  "/  '<'»'" J^'^'H 'On,  Hunt  ed..  Vol.  ix   p    147 
Ford,  The  H  rtlmgs  of  Gcorg,  liashinaton.  Vol   ii   p.^56 :  S^.-,rk= 


ix.  pp.  3J7-8. 


330 


THE  UNITED  STATES:  A   STUDV  ,N   INTERNATIONAL  ORGANIZATION 


w«i,. 


Vilue  of 

the 

AmendmenU 


by  that  of  S.  Carolina  /?X  by  tha  of  \  H!J^°"h°^  Massachusetts,  five 
Virginia,  thirty-three  by  that  of  N  York  i^:^^^  u\"''''!l}'y  ^'^'^  °* 
tU'enty-onc  by  that  of  R   Island  '  "^  ""'-^'--^'-^  ''i'  '^at  of  N.  Carolina. 

inst"n:;%^h[^y!thSt'a°s!ngl;%^ir'arrr^  ^"'^"^r-^'  -  '>- 

■scribe   the   powers  erante?!   to    L  r     '        ,?     "''^"*  intended  to  circum- 
restrictionsorprohiE?»  "  ^'""''  Oovernnient.   by  explanations, 

versa,  truths  and  therefore  susceptSi.le  of  universaUpXiior-  a  diXd 

Mr    I  oot  sa^^   in   h  L-    f  ^"y^"""^"'  "'  "'^'  '''"lippines  in  1900.     Thus 
7    im  'nstructions  approved   by   the   President  on   April 

IsIands'-\uIb-%"preSes'LTn°porSo^^^^^^  *'^""^'^'-  7^    ''^^    ^'^'"PP- 
they  will  inevitably  witliin  a  short  h1  r,  "'^■^<-\P""'-->P'«-''  and  rules,  and 

every  division  and  bran  L  of  SrU"  „. neTrthe ' Pr;''' ■ '"^"l'  ^P"" 
must  be  imposed  these  inviolable  rules  Pli'lippuies,  therefore, 

That  no  person  shall  he  deprived  of  life    lihnrf,, 
due  process  of  law  ;  that  private  ,  ropertv  sliall    S?,7'  ?\  '""T'^^  ^'^'l""' 
without  just  compensation-  thit  in  .ii'     •  '  '"•'  '"'''■"  ^"i"  P"''''<--  use 

shall  enjoy  the  ^l^'ra  'sp  cdy  and  r>u[r"t  •  P^°^^"«*""«  the  accused 
nature  r.nd  cause  of  the  accusatm^  t  f  T^'  *".''^  i"forn,ed  of  the 

against   him.   to   have  co,,SmTsorv    ;ro"  ^''^'  '^'  ^^''"''^^es 

favor,  and  to  have  the  a   'tan^^^^^^  obtaining  witnesses   in   his 

hail    shall    not    be   renuirel    nor  1.      "'"'  l""'  ^"  '^"^'"''^  •  '^at  excessive 

ynusual  punishment  i:',fld:thLrp\""nXll  b"'^"'?'/  ""'■-  ""^'  '""^ 
for  the  san.e  offense,  or  be  co  .eHed  H  .  ,v  ^  .'""  •'''"  '"  eopardy 
against  himself;  tha    "he  riZ  t  ,  h  "       "•""''''  ^•''''  '"  ^'^  »  ^^'tness 

and  seizures  si  allTuKlKv  dated  .bT""'  -T"'',  ""'"^■"^""able  searches 
servitude  shall  exis  except  i.nn  1  ""  ''7  ''^^'"'■^  ""-^  'nvoiu.uary 
attainder  or  rr/.,K/,;^hushnll'^r"^^  ^.°'  """^'=  '^at  no  b,ll  of 
abrid,in,Mhe  frSon^'^f^  :cl  ^ "oni^rp'-Vs 'r  ,1^"  '"l  '^'i  ^'  ''-•'^^^^ 
peaceably    to    assemble    and    Pet,  i„„    It  ^f  •  !  '*•■  '■'^'''"  "^  '^e  people 

prievana.;    that    no   law    sh->       1^  ^^overiiment    for    a    redress    of 

rehpion  or  proh  bitin,^  tL  free  eve  J  '  ft, ''•"Pr''"^'  f"  establishment  of 
and  enjoy„,lnt  of  eti  t.s  ,  of<^s  on  nl  r'"^' k"^  "'['  "'^  f^^''"'  ''^"^'^^ 
or  preference  shall  forelxTlf  allowed^     '^  '""'"^'^  ^^'"'^"^  discrimination 

J.  B.l';^u  edrpp'^l-f  "'^^'  "'"'  ^'""'"<"  '^"'-y  0/  "•'  t'-V^.^  S,a.es.  Robert  Bacon  and 


CX>VERNMENT  SET  UP:  AMENDMENTS 


331 


And  in  the  case  of  Kepttcr  v.  United  States  (195  U.  S..  100,  123-4). 
decided  by  the  Supreme  Court  in  1903,  Mr.  Justice  Day,  speaking  of  these 
instructions,  thus  comment?  upon  them : 

These  words  are  not  strange  to  the  American  lawyer  or  student  of  con- 
stitutional history.  'Ihey  are  the  familiar  lanRuage  of  the  Bill  of  Rights, 
slightly  changed  in  form,  hint  not  in  substance,  as  found  in  the  first  nine 
amendments  to  the  Constitution  of  the  United  States,  with  the  omission  of 
the  provision  preserving  the  right  to  trial  by  jury  and  the  right  of  the 
people  to  bear  arms,  and  adding  the  proiiibition  of  the  Thirteenth  Amend- 
ment agamst  slavery  or  involuntary  servitude  except  as  a  punishment  for 
crime,  and  that  of  Art.  1,  §9,  to  the  passage  of  bills  of  attainder  and 
ex  post  facto  laws.  1  hese  principles  were  not  taken  from  the  Spanish  law ; 
they  were  carefully  collated  from  our  own  Constitution,  and  embody 
almost  verbatim  the  safeguards  of  that  instrument  for  the  protection  of  life 
and  liberty. 

In  interpreting  the  Constitution  it  must  always  be  borne  in  mind  that,  S'n. 
while  the  intent  of  the  framers  of  that  instrument  is  important,  as  showing  ^°""'"""" 
the  meaning  which  they  ascribed  to  it,  the  greatest  weight  must  be  given  to 
the  proceedings  in  the  State  Conventions  ratifying  the  Constitution  and  to 
the  first  ten  amendments  which  are,  as  already  stated,  in  the  nature  of  an 
authoritative  and  contemporaneous  interpretation  put  upon  the  Constitution 
by  three-fourths  and  more  of  the  States  in  the  exercise  of  their  rights  under 
the  Constitution.  It  is  believed  that  these  principles  of  interpretation,  con- 
stituting as  they  do  a  perfect  canon  of  construction,  have  never  been  better 
stated  than  by  Mr.  Madison,  who  would  have  been  supposed  to  be  inclined 
to  favor  the  views  of  the  framers.  because  of  his  membership  in  the  Con- 
vention and  his  authorship  of  the  X'otes  in  which  their  views  are  preserved, 
to  the  detriment  of  the  authority  of  the  State  conventions.  Thus,  Mr.' 
Madison  said: 

But,  after  all,  whatever  veneration  might  be  entertained  for  the  body 
of  men  who  formed  our  Constitution,  the  sense  of  that  body  could  never 
be  regarded  as  the  oracular  guide  in  expounding  the  Constitution.  .As  the 
instrument  came  from  them  it  was  nothing  more  than  the  draft  of  a  plan, 
nothing  but  a  dead  letter,  until  life  and  validity  were  breathed  into  it  by 
the  voice  of  the  people,  speaking  through  the  several  State  Conventions. 
If  we  were  to  look,  therefore,  for  the  meaning  of  the  instrument  beyond 
the  face  of  the  instrument,  we  must  look  for  it.  not  in  the  General  Conven- 
tion, which  proposed,  but  in  the  State  Conventions,  which  accepted  and 
ratified  the  Constitution.' 

As  a  guide  in  expounding  and  applying  the  provisions  of  the  Constitu- 
tion, the  debates  and  incidental  decisions  of  the  Convention  can  have  no 
authoritative  character.     However  desirable  it  be  that  they  should  be  pre- 

•  James  Madison  in  the  House  of  Representatives.    Annals  of  Congress,  Fourth  Con- 
gress, First  Session,  p.  776, 


Thr   First  T«l 
.Amendments 


m 


ii  ♦t^^ , 


Difficultin 
Overcome 


332  THE  UNITED  STATES:  A   STUDY  IN   INTERNATIONAL  ORGANIZATION 

served  as  a  gratification  to  the  laudable  curiosity  felt  by  every  people  to 
trace  the  origin  and  progress  cf  their  political  Institutions,  &  asV  source 
perhaps  of  some  hghts  on  the  Science  of  Gov',  the  legitimate  meaning  of 
the  Instrument  must  be  derived  from  the  text  itself;  or  if  a  key  is  to  be 
sought  elsewhere,  it  must  lie  not  in  the  opinions  or  intentions  of  the  Body 
which  planned  &  proposed  the  Constitution,  but  in  the  sense  attached  to  it 
by  the  people  in  their  respective  State  Conventions  where  it  reC*.  all  the 
Authority  which  it  possesses.* 

I  must  say  that  the  real  measure  of  the  powers  meant  to  be  granted  to 
Congress  by  the  Convention,  as  I  understood  and  believe,  is  to  be  sought 
in  the  specifications,  to  be  expounded  indeed  not  with  the  strictness  applied 
to  an  ordinary  statute  by  a  Court  of  Law;  nor  on  the  other  hand  with  a 
latitude  tliat  under  the  name  of  means  for  carrying  into  execution  a  limited 
Oovernment.  would  transform  it  into  a  Government  without  limits.' 

And  finally,  in  speaking  of  the  difference  of  opinion  between  Colonel 
Hamilton,  on  the  one  side,  and  himself,  on  the  other.  Mr.  Madison  said,  as 
reported  by  Mr.  N.  P.  Trist  in  his  Memoranda,  under  date  of  September 
27,  1834,  but  two  years  before  Mr.  Madison's  death: 

In  a  word,  the  divergence  between  us  took  place— from  his  wishing  to 
admmtslrnti.m.  or  rather  to  administer  the  Government  (these  were  Mr 
M.  s  very  words),  into  what  he  thought  it  ought  to  be;  while,  on  my  part 
1  endeavored  to  make  it  conform  to  the  Constitution  as  understood  by  the 
Convention  that  produced  and  recommended  it.  and  particularly  by  the 
State  conventions  that  adopted  it.* 

Perhaps  the  difficulties  of  forming  the  more  perfect  Union  under  the 
Constitution  and  of  the  influence  which  it  was  foreseen  it  might  have  upon 
the  society  of  nations  have  never  been  better  stated  than  by  the  two  great 
members  of  tiie  Convention,  whose  presence  alone  would  have  rendered  that 
conference  of  the  States  illustrious.  Thus,  George  Washington  said  in 
a  letter  dated  November  16,   1787,  addressed  to  Mrs.  Macaulay  Graham: 

The  various  and  opposite  interests  which  were  to  be  conciliated  the 
local  prejudices  which  were  to  be  .sulKlucd.  the  diversity  of  opinions'  and 
sentiments  which  wire  tu  be  reconciled,  and,  in  fine,  the  sacrifices  which 
were  necessary  to  be  made  on  all  sides  for  the  general  welfare  combined 
to  make  it  a  work  of  so  intricate  and  difficult  a  nature,  that  I  think  it  is 
much  to  be  wondered  at.  that  any  thing  could  have  been  produced  with  such 
unanimity  as  the  con.stitution  proposed.* 

Thus  Benjamin  Franklin  wrote  in  a  letter  to  Mr.  Grand  dated  October 
22,  1787: 

'  J^"^*'  jiradison  to  Thomas  Ritchie,  September  IS,  1821.     IVrtUngs  of  Madison,  Vol.  ix, 


James  Ma<l.snn  to  M.  I..  Hiirll)ert.  Mav.  18.10.    Ibid.,  pp.  371-2 
M.  S.  Ratul.all,  life  of  Thnmas  Jefferson.  Vol.  iii,  p.  59S 
Sparks,  The  H'ritinys  of  H'ashington,  Vol.  ix,  p.  283 


GOVERNMENT  SET  UP:   AMENDMENTS 


333 


If  It  succeeds.  I  do  not  sec  why  yfiu  mi^;)it  not  in  Europe  carry  the 
Project  of  good  Henry  the  4th  into  Execution,  hv  fonning  a  l-tderal  Union 
and  One  Grand  Kepubhck  of  all  its  diHercit  Sta'tcs  &  Kingdoms,  by  means 
of  a  hke  Lonvention,  for  we  had  many  Interests  to  reconcile.' 

In  an  address  on  the  United  States  Supreme  Court  and  the  sovereignty 
of  the  people,  delivered  in  1890.  the  late  .Mr.  Edward  John  Phelps,  a^'di.s- 
tinguished  lawyer  of  the  United  States,  its  Minister  Plenipotentiary  and 
Envoy  E.xtraordin.iry  to  Great  Britain  and  leading  counsel  l.efor'e  the 
Behring  Sea  Commission  of  IW.V  f.mly  said:  "  American  experience  has 
made  it  an  axiom  in  political  science  that  no  written  constitution  of  govern- 
ment can  hope  to  stand  without  a  paramount  an.l  independent  trilnmal 
to  determine  its  construction  and  to  enforce  its  precepts  in  the  last  resort. 
This  is  the  great  and  foremost  duty  cast  by  the  Constitution,  for  the  sake 
of  the  Constitution,  upon  the  Supreme  Court  of  the  United  States."  - 

The  construction  placed  by  the  States  of  the  Union  upon  the  Constitu- 
tion would  seem  to  indicate  to  the  unprejudiced  mind  that  at  that  time  they 
regarded  themselves  as  States,  not  provinces,  entering  into  union,  granting 
all  lowers  to  the  Union  of  their  creatit)n  which  it  could  exercise,  and  reserv- 
ing to  themselves  the  exercise  of  powers  which  they  had  not  directly  granted 
or  which  they  had  not  granted  by  necessary  imi)lication,  or  whose  exercise 
by  themselves  they  had  not  renounced  in  the  common  good.     The  Supreme 
Court  of  the  United  States,  which  is  the  "  paramount  and  independent  tri- 
bunal," to  quote  Mr.  Phelps'  l.inguage.  "  to  determine  its  construction."  has 
repeatedly,  in  the  hundred  years  and  more  lul!i,wing  the  in.stitntion  of  the 
Cover   inent    un.Ier    the    Constitution.    l)een    called    upon    to    intcrjiret    that 
charter  of  government  in  cases  presented  to  it  and  propcrlv  involving  its 
provisions,  and  it  has,  from  its  first  to  its  last  decision,  spoken  the  uniform 
language  of  statesman  and  of  jurist,  irrespective  of  section  or  party.     Thus. 
Mr.  Justice  Iredell  said,  in  his  dissenting  opinion  in  the  case  of  Cliish.^lw   ti,c 
V.  Georgia.  (2  Dallas,  419,  43.=;).  decided  in  1793.  an  opinion  approved  hv   of'X' 
the  11th  amendment  to  the  Constitution  of  the  United  States:  '    ^''"" 

Every  State  in  the  Uiiitm.  in  evcrv  uistance  where  its  sovereimuv  Ins 
not  been  delegated  to  the  United  Stales.  I  consider  to  be  as  comi.'kv'lv 
sovereign,  as  tlie  United  Stales  are  in  respect  to  the  powers  surreiukrc"(i 
Ihe  bnitul  Slates  are  sovereign  as  to  all  the  powers  of  GovcriiMiont 
actually  surrendered:  Each  State  in  the  Uvioit  is  sovereign  as  to  a'l  the 
powers  reserved.  It  must  necessarily  be  so,  because  the  United  Slute^:  li.nve 
ru)  claim  to  any  authority  but  such  as  the  Slates  have  surrendered  to  them: 
Of  course  the  part  not  surrendered  must  remain  as  it  did  before. 

'  .\    H.  Smyth.  The  IVritings  of  Penjamin  Franklin.  Vol.  ix,  p.  619 


Suvcrei  Kilty 
of  the 
Stdlcj 


■■ns  and  t^ssays,  pp.  58-9. 


334 


THE   UNITED  STATES:  A   STUDY   IN   INTEBNATIONAL  ORGANIZATION 


l^lfCvJ 


The  Diviiion 
of  Sovereign 
rowert 


To  the  same  effect   Mr.  Justice  Story  said,  in  delivering  the  opinion  of  the 
Supreme  Court  m  Martin  v.  HunUr  (1  Wheaton.  304,  325-6).  decided  in 

in  t£".M,!  f^"  ^''"*^'  ''J'  P«''.^*<^»'y  c'wr  that  the  sovereign  powers  vested 
in  the  state  governments,  by  their  respective  constitutions,  remamed  unaltered 

fhe'unlTstales^''"''^  "  '''  "  '""'^  ^"^  «-"'^<^  '°  ^^'^  governmeJrof 

as  tISrs«m"t?r  ''^r'.,'"*  T"  «'"^''?'  ^'"°"'"K-  P'^*'"  ^^'^  obvious 
as  tney  seem  to  be.     They  have  been  positively  recognised  bv  one  of  thi. 

articles  m  amendment  of  the  constitutiolTwhichdeclafesMhat'' the  powers 

the  Sf.?  ,    '°  ""^  ^T'^  u^'"'"  ''y  ''^^  constitution,  nor  prohibited  by  Tt  to 
the  states,  are  reserved  to  the  states  respectively,  or  to  the  feoMe  " 
,r.I^»  B«v"nmem.  then,  of  the  United  States  can  claim  no  powers  which 
^LT^'^D"'^  '°  "  ^^  '^^  constitution,  and  the  powers  actually  Rranted 
must  be  such  as  are  expressly  given,  or  given  by  necessary  implica.fon 

The  great  Chief  Justice  of  the  United  States,  John  Marshall,  said,  in  deliver- 

',"^J  ,7,".^r'"°"'  °P'"'°"  °^  ''''  '''■^''"■^"  °^  ^^^  <^o"rt  •"  McCulloch  V.  Mary, 
land  (4  Wheaton,  316.  403,  410),  decided  in  1819: 

No  political  dreamer  was  ever  wild  enough  to  think  of  breakine  down 
the  ines  which  separate  the  States,  and  of  compounding  the  American  Z^ 
Ki^SatTs'  .T""  """•    ""'  ^-^«>--^.  when  t^ey  act,Theracril; 

In  .America,  the  powers  of  sovereignty  are  divided  between  tbp  anv*™ 
ment  of  the  Union,  and  those  of  the  slates.    They  are  S  soverei  J,   w  ^h 
respect  to  the  objects  committed  to  it,  and  neither  sovereign  w°Ih  ScT  S 
the  objects  committed  to  the  other.  ^  respect  to 

In  a  very  much  later  case,  when  the  Civil  War  might  have  seemed  to  the 
partisan  to  have  changed  the  relation  of  the  States  to  the  Union  and  of  the 
L  mon  to  the  States.  Mr.  Chief  Justice  Chase  said,  in  delivering  the  opinion 
of  the  court  ,n  Texas  v.  White  (7  Wallace,  700,  725).  decided  in  1868,  and 
involving  this  very  relationship: 

fr^.^t"'''"'  ^l^f  .Articles  of  Confederation  each  State  retained  its  sovereignty 
freedom  .-jnd  mdependence.  and  every  power,  jurisdiction,  and  right  nTex- 
pressly  delegated  to  the  United  States.  Under  the  Const  tut  ion  fhouRh  the 
TZ  V  t^  ^^?'r  ""'"'  •""Sh  restricted,  still,  all  powers  not  delega  ed 
to  he  Lmted  States,  nor  prohibited  to  the  States,  are  reserved  to  he 
States  respectively,  or  to  the  people  And  we  have  already  had  Sasi^n  to 
remark  at  this  term,  that  "  the  people  of  each  State  compose  a  St^e  having 
Its  own  government,  and  endowed  with  all  the  functions  essentia  osepa^ 
rate  and  independent  existence."  and  that  "without  the  States  in  union 
there  could  be  no  such  political  body  as  the  United  States."  Not  S" 
therefore,  can  there  be  no  loss  of  separate  and  independent  autonomy  ,o 
the  States  through  the.r  union  under  the  Constitution,  but  it  may  be  no° 
unreasonably  sa,d  that  the  preservation  of  the  States,  and  the  maintenance 
of  their  governments,  are  as  much  within  the  design  and  care  of  the  Co" 
stitution  ar.  the  preser^-ation  of  the  Union  and  the  maintenance  of  the  Na- 


GOVERNMENT  SET  UP:   AySNOMENTS 


335 


tional  Government.    The  Constitution,  in  all  its  provisions,  looks  to  an  inde- 
structible Union,  composed  of  indestruciible  States. 

Two  years  later,  in  a  case  involving  an  act  of  Congress  in  excess  of  the  Con- 
stitutional grant  of  power,  affecting  an  official  of  one  of  the  States  of  the 
Union,  and  therefore  the  State,  Mr.  Justice  Nelson,  speaking  for  the  court 
said,  in  Collector  v.  Day  (11  Wallace.  113,  124),  decided  in  1870: 

The  general  government,  and  the  States,  although  both  exist  within  the 
same  territorial  limits,  are  separate  and  distinct  sovereignties,  acting  sepa- 
rately and  mdependcntly  of  each  other,  within  their  respective  spheres  The 
fonner  m  its  appropriate  sphere  is  supreme ;  but  the  States  within  the  limits 
of  their  powers  not  granted,  or,  in  the  language  of  the  tenth  amendment, 
reserved,  are  as  independent  of  the  general  government  as  that  govern- 
ment within  its  sphere  is  independent  of  the  States. 

And  finally,  Mr.  Justice  Brewer  said  more  recently,  in  delivering  the  opinion 
of  the  court  in  South  Carolina  v.  Unitei  States  (199  U.  S.,  437,  448)  de- 
cided in  1905 : 

We  have  in  this- Republic  a  dual  system  of  government,  National  and 
state,  each  operating  within  the  same  territory  and  upon  the  same  persons ; 
and  yet  working  without  collision,  because  their  functions  are  different! 
There  are  certain  matters  over  which  the  National  Government  has  absolute 
control  and  no  action  of  the  State  can  interfere  therewith,  and  there  are 
others  in  which  the  State  is  supreme,  and  in  respect  to  them  the  National 
Government  is  powerless.  To  preserve  the  even  balance  between  thes^e  two 
governments  and  hold  each  in  its  separate  sphere  is  the  peculiar  duty  of  all 
courts,  preeminently  of  this — a  duty  oftentimes  of  great  delicacv  and  diffi- 
culty. ' 

It  is  believed  that  the  views  of  accredited  publicists,  and  decisions  of  the 
Supreme  Court,  have  been  but  as  a  gloss  upon  the  views  of  Mr.  Madison, 
expressed  in  a  letter  to  Robert  Y.  Hayne.  United  States  Senator  from  South' 
Carolina,  taking  issue  with  the  theory  of  the  Constitution  propounded  by  that 
gentleman. 

In  the  draft  of  this  admirable  letter  dated  April  3/4.  1830.  Mr.  Madison, 
who  would  doubtless  be  called  the  Father  of  the  Constitution  if  his  modesty 
had  not  forbidden  it,'  who  was,  in  any  event,  the  best  informed  delegate  in 
the  Convention,  and  who  afterward  becime  a  memlier  of  the  Congress,  Sec- 
retary of  State,  and  President  of  the  United  States  under  the  Constitution, 
wrote : 

It  appears  to  me  that  in  deciding  on  the  character  of  the  Constitution  of 
the  U.  S.  it  is  not  sufficiently  kept  in  view  that  being  an  unprecedented 

* "  Your  letter  of  the  18th  Ult.  was  duly  received.  You  give  me  a  credit  to  whicli  I 
have  no  claim,  in  calhng  me  the  writer  of  the  Constitution  of  the  L'.  S.'  This  was  not 
like  the  fabled  Goddess  of  Wisdom,  the  offspring  of  a  single  brain.  It  ought  to  be  regarded' 
as  the  work  of  manv  beads  *■??">•  hands."  Extract  from  letter  of  James  Madison  to 
William  Cogswell,  Alarch  10.  1834.  from  the  Madison  MSS.  in  the  Library  of  Congress 
See  also,  The  IVrilings  of  James  Madison.  Hunt,  Editor,  Vol.  IX  (1910).  pp  533-534 


■     !> 


#!#' 


336  THE  UNITED   STATES:   A   STUbV   IN    INTEaNATlONAL  ORGANUATION 

moHitKMtioii  of  the  powers  of  CJov'.  it  must  not  hr  looked  at  thro'  the  refract- 
ing imdiuin  either  of  a  consolidated  (ioverntnent.  or  of  a  confederated  Gov"; 
that  Iwiii^;  essentially  ditTerent  from  fwth,  it  must  be  it*  own  interpreter 
accordniK  to  its  uxt  and  ilw  facts  of  the  case. 

Its  characteristic  pt'culianties  arc  I.  the  mode  of  its  formation.  2.  its 
division  of  the  supreme  (wwers  of  Cov'.  between  the  States  in  their  united 
capacity,  and  the  States  in  their  individual  capacities. 

1.  It  was  furnad  not  by  the  Governments  of  tht-  States  as  the  Federal 
Government  sufRrseded  hy  it  was  formed;  nor  t.y  a  majority  of  the  people 
of  the  U.  S  as  a  single  Commun  ty,  m  the  nunner  of  a  consolidated  Gov- 
ernment. 

It  was  formed  by  the  States,  that  is  by  the  people  of  each  State,  acting 
in  their  highest  sovereign  capacity  thro'  Conventions  representing  them  in 
that  capacity,  in  like  manner  and  by  the  same  authority  as  the  State  Consti- 
tutions were  formed;  with  this  characteristic  &  essential  difference  that  the 
Constitution  of  the  L'.  S.  being  a  compact  among  the  States  that  is  the  people 
then,  f  making  them  the  parties  to  the  compact  over  one  people  for  spccihid 
ohjicts  can  not  he  rivo.  J  or  changed  at  the  will  of  any  State  within  its 
limits  as  the  Constitution  of  a  State  may  he  changed  at  the  will  of  the  State, 
that  is  the  jK(i|)le  who  compose  the  State  &  are  the  parties  to  its  ronstitu'ion 
&  retained  ihcir  i>owers  over  it.  The  idea  of  a  compact  Iwtween  the  Gov- 
ernors &  the  Gov  nud  was  (  xploded  with  the  Royal  doctrine  that  Govern- 
ment was  held  by  some  tenure  independent  of  the  people. 

The  Constitution  of  the  U.  S.  is  therefore  within  its  prescribed  .sphere  a 
Constitution  in  as  strict  a  sense  of  the  term  as  are  the  Constitutions  of  the 
individual  States,  within  their  respective  spheres. 

2.  .And  that  it  divides  the  supreme  powers  of  Gov!  between  the  two 
Governments  is  seen  on  the  face  of  it;  the  powers  of  war  &  taxation,  thai 
is  of  the  sword  &  the  purse,  of  commerce  of  treaties  &c.  vested  in  the  Gov! 
of  the  U,  S.  being  of  as  high  a  character  as  any  of  the  powers  reserved  to 
the  State  Gov': 

If  we  advert  to  the  Gov!  of  the  U.  S.  as  created  by  the  Constitution  it  is 
found  also  to  be  a  Gov!  in  as  strict  a  sense  of  the  term,  within  the  sphere  of 
its  powers,  as  the  Gov!"  created  by  the  Constitutions  of  the  States  are  within 
their  respective  spheres.  It  is  like  them  org.-nizcd  into  a  Legislative,  Execu- 
tive &  Judicial  Dep!  It  has,  like  them,  acknowledged  cases  in  which  the 
powers  of  those  Departments  are  to  operate  and  the  operation  is  to  be  the 
same  in  both  ;  that  is  directly  on  the  persons  &  things  submitted  to  their 
power.  The  concurrent  operation  in  certain  cases  is  one  of  the  features 
constituting  the  peculiarity  of  the  system. 

Between  these  two  Constitutional  Gov!',  the  one  operating  in  all  the 
States,  the  others  operating  in  each  respectively;  with  the  aggregate  powers 
of  Gov!  divided  between  them,  it  could  not  escape  attention,  that  contro- 
versies concerning  the  boundary  of  Jurisdiction  would  arise,  and  that  with- 
out some  adequate  provision  for  deciding  them,  conflicts  of  physical  force 
miu'ht  ensue.  A  political  system  that  does  not  provide  for  a  peaceab!  & 
authoritative  termination  of  occurring  controversies,  can  be  but  ihe  nai.ie  & 
sh.-idow  of  a  Gov!  the  ver>'  object  and  end  of  a  real  Gov!  being  the  substi- 
tution of  law  &  order  for  uncertainty  confusion  &  violence. 

That  a  final  decision  of  such  controversies,  if  left  to  each  of  1.^  State 
now  24  with  a  prospective  increase,  would  make  the  Constitution  &  laws  of 
the  U.  S.  different  in  different  States,  was  obvious ;  and  equaJIy  obvious  that 


OOVUNMENT   SET   UP!   AMENDMENT! 


337 


this  diversity  of  independent  decisions  must  disorganize  the  Government 
of  the  Union,  ^nd  even  dcconi{HJ!ic  the  Lnion  itself. 

Against  such  fatal  conscqurncrs  the  Cunstitutiun  undertakes  to  guard 
1.  hy  declaring  that  the  Cunmitution  &  laws  of  the  States  in  their  united 
capacity  shall  have  eiTect,  anything  in  the  Cunstitution  or  laws  of  any  State 
in  its  individual  capacity  to  the  contrary  notwithstanding,  by  giving  to  the 
Judicial  authority  of  the  U.  S.  an  apj)cllatc  suprtinacy  in  all  cases  arising 
under  the  Constuution;  &  within  the  course  of  its  functions,  arrangements 
supposed  to  be  justified  by  the  necessity  of  the  case ;  and  by  the  agency  of 
the  people  &  legislatures  of  the  States  in  electing  &  apiK)inting  the  Func- 
tionaries of  the  Connnon  (jov*.  whilst  no  corresponding  relation  existed  be- 
tween the  latter  and  the  Functionaries  of  the  States. 

2.  Should  these  provisions  be  found  notwithstanding  the  responsibility  of 
the  functionaries  of  the  Gov',  of  the  U.  S.  to  the  Legislatures  &  people 
of  the  States  not  to  secure  the  State  Gov"  against  usurpations  of  the  Gov' 
of  the  United  States  there  remains  within  the  purview  of  the  Const"  an 
impeachment  of  the  Executive  &  Judicial  Functionaries,  in  case  of  their 
participation  in  the  guilt,  the  prosecution  to  depend  on  the  Representatives 
of  the  people  in  one  branch,  and  the  trial  on  the  Representatives  of  the  States 
in  the  other  branch  of  the  Gov!  of  the  U.  S. 

3.  The  last  resort  within  the  purview  of  the  Const?  is  the  process  of 
amendment  provided  for  by  itself  and  to  be  executed  by  the  States. 

Whether  these  provisions  taken  together  be  the  best  that  might  have 
been  made ;  and  if  not,  what  are  the  improvcntents,  that  ought  to  be  intro- 
duced, arc  questions  altogether  distinct  from  the  object  presented  by  your 
communication,  which  relates  to  the  Constitution  as  it  stands. 

In  the  event  of  a  failure  of  all  these  Constitutional  resorts  against 
usurpations  and  abuses  of  power  and  of  an  accumulation  thereof  rendering 
passive  obedience  &  nonresistance  a  greater  evil  than  resistance  and  revolu- 
tion, there  can  remain  but  one  resort,  the  last  of  all,  the  appeal  from  the 
cancelled  obligation  of  the  Constitutional  compact  to  original  rights  and  the 
law  of  self-preservation.  This  is  the  Ultima  ratio,  under  all  Governments, 
whether  consolidated,  confederated,  or  partaking  of  both  those  characters. 
Nor  can  it  be  doubted  that  in  such  an  extremity  a  single  State  would  have  a 
right,  tho'  it  would  be  a  natural  not  a  constitutional  Right  to  make  the  appeal. 
The  same  may  be  said  indeed  of  particular  portions  of  any  political  cotn- 
munity  whatever  so  oppressed^  as  to  be  driven  to  a  choice  between  the 
alternative  evils.  .   .  .' 

'  The  Writings  of  James  \tai!isim,  Hunt  ed..  Vol.  ix,  pp.  J8J-7. 


XVII 


^|! 


THE  NATURE  OF  JUDICIAL  POWER 


1  I 


What  it  judicial  power?     It  will  not  do  to  aniwer 
the  courts,  Jtwcautc  one  uf  the  very  things  to  be  deterr 
cise      It  is,  indeed,  very  difficult  to  find  any  exact 
be  found  in  any  of  the  old  treatises,  or  any  of  the 
(ioiit,  fur  a  very  obvious  reason.     While  in  a  nt 
this   division   between   legislative  and   judicial   pc 
less,  in  the  habit  of  exercising  a  very  large  par-    - 
often  the  Court  of  .Appeals,  and  Parliament  v  <     i 
as  well  as  enacting  convictions  for  ueasmi  . 

Judicial  power  is,  perhaps,  better  detini-'^     i 
than   in  ant  other  place,  and  especially   so 
because  it  has  more  often  been  the  subject 
frequently  necessary  to  the  determination  o 
else.     It  it  the  power  of  a  court  to  decid'    ^    '   '  '>i' 
effect  between  persons  and  parties  who  briin^      i .  - 
MilUr,  Uclurtt  on  the  ConslilutioH  of  Iht  Lnii  '.  .V 


it  the  power  exercised  by 
^M  (lower  they  may  exer- 
.ilc  to  hand      It  it  not  to 


'!r..ic' 


'  sli  aiithn-           •^r 

!          .    .               .111. 

i    .r    l-^l     .tu' 
t,             r      1'..,- 
i     ,i    .;....,«  1  ill 

judicial  deci- 

al   tiiey  had 

i,   neverthe- 

Lords  was 

{  attainder 

1      he 

vn  crurti 
.ed  States, 

■'■■     ,  '  1    :    .    .-a* 

.'atinn  more 

e   .      Ili^-         u,! 

'.an  anywhere 

.     ;'  d^'iuiit  .ir.'i 
,   t    1    ■\~v  ion. 

carry  it  into 
{Mr.  Jutlict 

.  '     .  •i ■"•».'■ 

At  to  what  it  meant  by  the  phrase  "  judicial  powei  ' 
343,  349.     Also  charge  of  Judge   Nelton  to  grand  jui 


I  iri..\a,        Siiil'.Zi  VVitcontin, 
.rcuit   dn  rt,   1851,  that  it 
it  the  power  conferred  upon  courts  in  the  ttrict  sensv  ■  •rin  ;        '  ts  that  compose 

one  of  the  great  departments  of  the  government;  and  noi  i/>^..i.t  juuicial  in  its  nature,  or 
await  judicial,  invested  from  time  to  time  in  individuals,  separately  or  collectively,  for  a 
particular  purpose  and  limited  time.  1  Blatchford,  635.  Gilberl  v.  Pritsl.  65  Barb.  444, 
448.  (Mr.  Justice  Miller,  Lectures  on  the  Constitution  of  the  United  Stmes.  tSgt,  p  }ij, 
note.) 

It  appears  in  our  bookt,  that  in  many  cases,  the  common  law  will  controul  Acts  of 
Parliament,  and  sometimes  adjudge  them  to  Iw  utterly  void:  .  .  .  (Lord  Cluef  Justice 
Coke,  in  Doctor  liotihams  Case.  K  Co  Hi'P  //.?ft.  nXa.  decided  in  l6lo,  English  licforls, 
Full  Hefrint,  I'ol.  LXXlll,  Kings  Bench  Dii-ision.  I'l,  1907,  p.  6it.) 

Even  an  Act  of  Parliament,  made  against  natural  equity,  as  to  make  a  man  Judge  in 
his  own  case,  is  void  in  it  self,  for  jura  naturi  sunt  immutabilia.  and  ihev  are  leges  leguni. 
(Lord  Chief  Justice  Hobart  in  Pay  v  Saiadgc*  11  abort  8}.  S7,  decided  i«  Idli.  Engltsh 
Retorts,  l-'utl  Reprint.  Vol.  LXXX.  King's  lieneh  Division.  IX.  nji'T,  p.  137.) 

And  what  my  Lord  Coke  says  in  Dr.  Bonham's  case  in  his  8  Co.  is  far  from  any  extrav- 
agancy, for  it  is  a  viry  reasonable  and  true  saving,  that  if  an  Act  of  I'arliami'nt  sliould  ordain 
that  the  same  person  should  be  partv  and  Judge,  or,  which  is  the  same  thing.  Judge  in  his 
own  cause,  it  would  be  a  void  Act  of  Parliament;  .  .  (Lord  thief  Justice  Holt,  in  The 
Cily  of  London  v.  '.food,  u  Mud.  ftrtfl,  f>S7-f>^S.  decided  in  1702.  English  Report  Full 
Reprint,  lol.  LXXXVm.  King's  Bench  Division,  Xl'll,  1908,  p.  iboi.) 

The  great  and  chief  End  therefore,  of  Mens  uniting  into  Commonwealths,  and  ,  ting 
themselves  under  (JovernmenI,  is  the  Preservation  of  their  Property.  \'o  which  in  the 
state  of  Nature  there  are  many  things  wanting. 

First  There  wants  an  eslabli.sh'd.  setttfd.  known  Lav.:  received  and  allowed  by  common 
Consent  to  be  the  Standard  of  right  and  wrong,  and  the  common  Measure  to  decide  all 
Controversies  between  them  For  though  the  Law  of  Nature  be  plain  and  intelligible  to 
all  rational  Creatures;  yet  Men  being  biassed  by  their  Interest,  as  will  as  ignorant  for 
want  of  Study  of  it,  are  not  apt  to  allow  of  it  as  a  Law  binding  to  them  in  the  application 
of  it  to  their  particular  Cases. 

338 


THE  MATURE  0¥  Jl'DlCIAL  POWER 


339 


the 

h 

to 


^ttondh  In  the  ftatc  of  Nature  thrrr  «»nt<  o  *«.'!."  and  indifftnul  Jud,jf.  with 
Auihorilv  to  dflcrmtnr  all  Diffrrf.ue,  jccnr.l.nu  t..  the  r.l»l.h»hed  Law  hot  rvery  one 
in  hat  k^tate  bJ^.n^  Ix^th  Ju.l«.-  .",1  !■  :xrcut,.,n.-r  of  ,hc  :.  'v  of  Nature.  Men  hc,n«  ,..rt..l 
„  them,elve..  l'.«.on  .n^  Kcvcnp-  .,  vcrv  apt  to  carry  them  too  far,  ""'I  » 'tj'  '?■'  ""'^ 
Heat,  in  their  own  I  a»c« ;  an  well  at  NeKlineoce.  an.l  unfoiicerneclnes*.  to  male  them  too 
reniiit  in  olhcri  Mens.  n  .      i.    i,   ,..a 

Thirdly    In   the   »tate   of    Nature   there   often   wanl«    I  ou:r   lo   haik   and 
Senlcnre  when  right,  and  to  .;.iv  it  <liic  /■  t,  fuM.oi.      Tliey  who  by  ain    ln)ii»t-  ■ 
will    »eMom    fail,    «h.re    they    are    aMe,    hy    force    to    make    w«A    their    In); 
Keji^tance   manv    t;nu«    mak. »    the    I'nmOimciil    .laiiK.r.m>.    an.l    fre.imnily    Me* 
tho,e  who  attempt  it      Uohii  l..nk,:  7-a,.   ir.'fws  of  u.ir.TMm.'itf,  Ifoj".  Ihwk  II 
S.tliom  i.'i-i^<^.  I'"''*J.  'Jill''"  "/  1714.  I  ol.  11.) 

This  writ  i«  .^(!ain^t  the  fiindamental  principles  of  law.   .    •   • 

.•\s  to  ,\.tH  of  I'arliaiiKnl  An  act  aKainM  the  L.mstitiition  1^  void,  an  art  against 
natural  equity  i>  void,  and  if  an  act  of  f'atliameni  should  I*  made,  i"  the  very  wonU 
of  thi-  petition.  It  would  he  void      The  execiitue  Courts  must  pa-s  vudi  act,  into  disuse 

H  Kvp  118  from  Viner  Reason  of  the  common  law  to  control  an  a't  of  1  .irliam.nt. 
Iron  manufacture  Noble  U.r.r.  proposal,  that  we  should  send  our  horse,  to  Knuland  to 
!„.  ,hod  .    .     {.Iriiunu-nl  of  lorn,-!  Oil    m  I'axton  s  CaSi-  on  II  nl)  of  .hsiilaiu.,  h/^l. 

II  orks  of  John  .Idams.  lol.  i.  iXy\  ff-  iH-iH) 

The  law  was  laid  down  in  the  same  way.  on  the  authority  of  the  above  cases  in 
nacon's  AhridBment.  first  published  in  17J5 :  in  Viiiers  .\bridRmcnt  published  1/-I1  51. 
from  which  OUs  quoted  it:  and  m  Comyn's  Dige-t.  published  /fi.'-7.  hut  written  more 
than  twenty  years  b.fore.  And  there  are  ohier  authorities  to  the  same  effect  So  that 
at  the  time  of  O/ij'.t  aKrccmcnt  his  position  appeared  to  be  supported  by  some  ot  the  hiRnest 
authorities  in  the  f".ii({lish  law  .  .        ,  •  .  /  .  .1.     c  1   „;.. 

1  he  same  doctrine  was  repeatediv  asserted  by  Ous.  and  was  a  favorite  in  the  eoloiuei 
Iwfore  the  Revolution  There  are  later  dicia  of  many  eminent  judnes  to  the  ctTcrt  that  a 
statute  may  be  void  as  exceeding  the  just  limits  of  leRislalivc  power,  but  it  is  he  levcd 
there  is  no  instance,  except  one  ease  in  South  Carolina,  in  which  an  act  of  the  Legislature 
has    lieen    set    aside   by    the   courts,    cxcelit    for    conilict    with    some    written    constitutional 

provision.  .         ,  ,       »  1;.  .       . 

The  reduction  of  the  fundamental  principles  of  government  in  the  Amcriran  States  to 
the  form  of  written  constitulifins,  established  by  the  people  themselves,  and  beyond  the 
control  of  llieir  representatives,  necessarily  ohlined  the  ludicial  deparlnuiit.  111  case  of 
a  conilict  between  a  constitutional  proMsion  and  a  leRislative  act.  to  obey  the  Coiistilution 
as  the  fundamental  law  and  dIsrcKard  the  statnt.'  This  rhity  was  rea.Kin/ed.  and  untonsti- 
tulional  .lets  set  aside,  bv  courts  of  justice,  even  before  the  aihiption  of  the  <  onslitution 
of  the  United  Stales.  Since  the  ratific.ition  of  that  Constitution  the  power  of  the  courts 
to  declare  unconstitutional  statutes  voi<l  has  become  loo  well  settled  to  require  an  accumu- 
lation of  authorities.  But  -s  the  office  of  the  judiciary  is  to  decide  particular  cases,  and 
not  to  issue  general  edicts,  only  so  much  of  a  statute  is  to  he  declare<!  void  as  is  repugnant 
to  the  Constitution  and  covers  the  case  before  the  court,  unless  the  constitutional  and 
uncnnstitutuinal  provisions  are  so  intei woven  as  to  convince  the  court  thai  the  legislature 
would  not  have  passed  the  one  without  the  other,  (.t/r  7iij(ii.-  Grax.  Were  the  \\  r,ls  of 
Asstslance    Legal,    1S65,    in    Quincy,    Miusachusetts   K<forls,    1761-1771,    Apfendix    i,    pp. 

Judicial  power,  as  contradistinguished  from  the  power  of  the  laws,  has  no  cxistenccv 
Courts  are  the  mere  instruments  of  the  law.  and  can  will  nothing.  When  they  ar-  s.i»| 
to  exercise  a  discretion,  it  is  a  mere  legal  discretion,  a  discretion  to  be  exercised  in  disci  ru- 
ing the  course  prescrd.ed  by  law.  and.  when  that  is  discerned,  it  is  the  duty  of  the  court 
to  follow  it.  Judicial  power  is  never  exercised  for  the  jiu: 
will  of  the  judge;  always  for  the  purpose  ol  giving  effect 
or,  in  other  words,  to  the  will  of  the  law.  U'hief  J-  n. . 
Stales  Hank,  9  ll'healon,  7}S.  S6^\  decided  in  1)114.) 


c  of  Riving  effect  to  tlie 
■■  will  of  ihe  legisl.Tliire. 
i':i;/  111  Oihorn  V.   I  ni'ed 


The  judicial  power  mentioned  in  the  constitution 
power  conferred   upon   courts  ordained   and  establisl 


'  csted  in  the  I'ouris,  mcan^  the 
and  under  the  .■onstiuition.  in 
the  strict  and  appropriate  sense  of  that  term— cour.^  tiiat  cnnipose  one  of  the  three  gf  if 
departments  of  the  government  prescribed  by  the  fur.damemai  law.  the  ?ame  as  the  oti 
two.  the  legislative  anil  the  executive.  (Mr  Justice  \elson  on  The  l-'ugitivc  Slave  Lau: 
I  Blatchford.  :-lffeiidir,  p    rtjj.  decided  in  iSfl. ) 


?    f 


340 


THE   UNITED  STMT'S:  A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


*^,^ 


The  award  of  execution  is  a  part,  and  an  essential  part  of  every  judgment  passed  by  a 
court  exercising  judicial  power.  It  is  no  judgment,  in  the  legal  sense  of  the  term,  with- 
out it  Without  such  an  award  the  judgment  would  be  inoperative  and  nugatory,  leaving 
the  aggrieved  party  without  a  remedy  (Chief  Justice  Taney  in  Gordon  v.  United  Stalfi. 
117  Lmted  States,  697  joi,  decided  in  1864) 

In  the  Constitution  are  provisions  in  separate  articles  for  the  three  great  departments 
of  government— legislative,  executive  and  judicial.  But  Iher*  is  this  significant  difference 
in  the  grants  of  powers  to  these  departments:  The  first  article,  treating  of  IcRislative 
powers,  does  not  make  a  general  grant  of  legislative  power  ...  By  reason  of  the  fact 
that  there  is  no  general  grant  of  legislative  power  it  has  become  an  accepted  constitutional 
rule  that  this  is  a  government  of  enumerated  powers.    .    .    . 

On  the  other  hand,  in  Article  III,  which  treats  of  the  judicial  department  ...  we 
find  that  -ection  I  reads  that  "the  judicial  power  of  the  United  States,  shall  be  vested 
in  one  Supreme  Cotirt,  and  in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish."     By  this  is  granted  the  entire  judicial  power  of  the  Nation.    .    . 

Speakmg  generally,  it  may  be  observed  that  Ih-  judicial  power  of  a  nation  extends  to 
all  controversies  justiciable  in  their  nature,  the  parties  to  which  or  the  properly  involved  in 
which  may  b^  reached  by  judicial  process,  and  when  the  judicial  power  of  the  United 
States  was  vested  in  the  Supreme  and  other  courts  all  the  judicial  power  which  the  Nation 
was  capable  of  exercising  was  vested  in  those  tribunals,  and  unless  there  lie  some  limita- 
tions expressed  in  the  Constitution  it  must  be  held  to  embrace  all  controversies  of  a 
justiciable  nature  arising  within  the  territorial  limits  of  the  Nation,  no  matter  who  may 
be  the  parties  thereto  (Mr.  Jiulice  Brewer  in  Kansas  v.  Colorado,  fo6  Untied  Stales  40 
SiSs.  decided  in  1907.)  '      ' 


CHAPTER  XVII 


THE   NATURE   OF   JUDICIAL    POWER 

As  heretofore  sugges:ted,  the  statesmen  of  the  Constitutional  Convention  J^S„tmt  of 
appear  to  have  read  and  deeply  pondered  Montesquieu's  Spirit  of  the  Laws,  """""I"'"' 
and  the  great  and  conscious  division  of  the  more  perfect  Union  into  three 
departments  appears  to  be  due  largely  to  Montesquieu's  influence  and  to  be 
traceable  to  the  Spirit  of  the  Imws,  and  more  especially  to  the  following 
passage : 

When  the  legislative  and  executive  powers  are  united  in  the  same  per- 
son, or  in  the  same  body  of  magistrates,  there  can  be  no  liberty;  because 
apprehensions  may  arise,  lest  the  same  monarch  or  senate  should  enact 
tyrannical  laws,  to  execute  them  in  a  tyrannical  manner. 

Again,  there  is  no  liberty,  if  the  power  of  judging  be  not  separated  from 
the  legislative  and  executive  powers.  Were  it  joined  with  the  legislative, 
the  life  and  lil)erty  of  the  subject  would  be  exposed  to  arbitrary  controul ;  for 
the  judge  would  be  then  the  legislator.  Were  it  joined  to  the  executive 
power,  the  judge  might  behave  with  all  the  violence  of  an  oppressor 

There  would  be  an  end  of  every  thing,  were  the  same  man.  or  the  same 
body,  whether  of  the  nobles  or  of  the  people,  to  exercise  those  three  powers, 
that  of  enacting  laws,  that  of  executing  the  public  resolutions,  and  that  of 
judging  the  crimes  or  differences  of  individuals.* 

The  Articles  of  Confederation  created  a  union  intended  to  l)e  perpetual; 
but  it  contented  itself  with  an  association  of  the  States,  without  creating 
an  agency  to  make  that  association  eflfective,  even  for  the  specified  purposes. 
The  Congress  was  the  legislative  department,  but  its  acts  were  in  the  nature 
of  recommendations,  rather  than  laws  in  the  ordinary  sense  of  the  word. 
There  was  no  executive  department,  unless  the  Congress  is  to  be  considered 
an  executive,  which,  however,  could  not  carry  into  effect  the  laws  which  it 
enacted.  There  was  no  Judiciary,  although  the  ninth  of  the  Articles  of 
Confederation  authorized  and  the  Congress  in  fact  did  establish  a  Court  of 
Appeal  for  prize  cases,  which,  as  we  have  seen  in  the  famous  ca«e  oi  The 
Active,  overruled  a  decision  of  the  Pennsylvania  prize  court,  a  form  of  jiuli- 
ciarv  which  was,  however,  unable  to  carry  its  decision  into  effect.  The  -ame 
article,  recognizing  the  necessity  of  judicial  settlement  of  di-piites  between 

'  Montesquieu.  The  Spirit  of  Laws,  English  translation.  1756.  Vol.  I,  Bo.jk  Xl,  Chap  V". 
p.  165. 

341 


m:^' 


jDKiaaL'r'/ 


■iW^J^.M 


342 


THE   UNITED   states:   A   STUDY    IN    INTERNATIONAL  ORGANIZATION 


Limitation 
of   Poweri 


Congress  define! 

Exter.t   I, lit 
nut    Natiirr 

of  the  Coutt't 
Power 


the  States,  provided  a  method  by  which  temporary  commissions  should  be 
created,  comirifj  into  Ijeing  lor  a  special  dispute  and  going  out  of  existence 
with  its  decision.     Hut  of  a  real  judiciary  there  was  nnthing. 

The  advocates  of  a  more  perfect  Union  foresaw  that  it  could  not  be  perma- 
nent, unless  it  was  organizetl  upon  a  broader  basis,  and  unless  the  Union  of 
the  States  was  provided  with  appropriate  agencies  to  carry  into  .rfect  the 
sovereign  powers,  of  which  the  States  divested  themselves  in  the  common 
interest  while  reserving  the  exercise  of  all  other  sovereign  powers  which  they 
did  not  grant  to  the  agency  they  were  creating,  or  otherwise  divest  them- 
selves of. 

Recognizing  the  need  of  the  three  departments  of  government,  the 
necessity  of  their  separation,  as  advocated  by  Montesquieu,  and  the  neces- 
sity likewise  of  their  equality,  springing  from  their  separatior  the  framers 
of  the  Constitution  created  a  lefjislativc.  executive  and  judiciary  department. 
As  the  Government  of  the  United  Statrs  was  one  of  limited  powers,  it  neces- 
sarily followed  that  the  legislature  wotdd  be  limited,  but  nevertiieless  com- 
petent to  carry  into  effect  the  p<iwers  directly  or  impliedly  granted  to  the 
United  States.  The  first  article  of  the  Constitution,  while  creating  a  Con- 
gress, does  not  vest  it  with  legislative  power  in  general,  but  with  "all  the 
legislative  powers  herein  granted."  In  the  same  manner  the  executive  power 
was  vested  in  a  President  of  the  United  States  of  America,  whose  powers 
were  !ii<cwise  limited,  inasmuch  as  he  could  only  execute  the  powers  vested 
in  the  United  States  which  were  expressly  or  impliedly  granted;  .and  the 
origin,  nature  and  source  of  the  power  and  authority  of  the  President  are, 
as  stated  in  the  oath  of  office,  to  execute  the  office  ot  President  and.  to 
the  best  of  his  ability,  "  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States." 

The  third  article  of  the  Constitution,  for  each  of  these  divisions  is  cov- 
ered by  an  article,  and  in  this  order,  vests  "the  judicial  power  of  the  United 
States  "  in  a  Supreme  Court  and  such  inferior  courts  as  Congress  may  from 
time  to  time  ordain  and  establish.  A-  in  the  previous  cases,  this  can  only 
mean  the  judicial  power  neressarilv  or  impliedly  granted  to  the  United  States, 
but  since  the  S.iprcme  Court  was  a  new  institution  and  as  judicial  power,  in 
the  sense  in  whicli  it  was  here  used,  was  and  unfortunately  still  is  a  novelty 
in  the  older  world,  the  Congress  defined  its  exttnt,  although  it  did  not  attempt 
to  define  its  nature,  The  ju.liciary,  wiiile  mextensive  with  the  legislative 
and  executive  departments  is,  like  each  of  them,  limited  in  extent  if  not  in 
nature.  In  the  case  ot  Kilhouni  v  I'hnmf'.u::  ■,  WS  U.  S.  168,  l',H)),  decided 
in  1880,  Mr.  Justice  Miller,  speaking  lor  the  court  said: 


I*  is  believed  to  he  one  "f  the  chief  merits  of  tin  Ainerican  pvJtem  of 
writu-n  constiuitiniinl  law,  '/.it  ill  tin-  p..\\iT.-  intrusted  u>  ir.,v(Tninent, 
whetht-r  State  or  national,  .'f  "iivided  into  the  three  ^;rand  departments,  the 


THE   NATURE    ^F   JUDICIAL   POWER 


343 


executive,  the  legislative,  and  the  judicial  That  the  ranc  io;is  appropriate  to 
each  of  these  branches  of  Bovcmrnent  shall  be  vested  in  ,:  separate  bodv  of 
pubhc  servants,  and  that  tht  pentctiun  of  the  sy=tem  n  luires  that  the  lines 
which  separate  and  divide  these  departments  shall  'e  broadly  and  clearly 
defined.  It  is  also  essential  to  the  successful  workuisr  of  this  system  that  the 
persons  intrusted  with  power  in  any  one  of  these  branches  shall  not  be  per- 
mitted to  encroach  upon  the  powers  contided  to  the  others,  but  that  each 
shall  by  the  law  of  its  creation  he  limited  to  the  exercise  of  the  powers 
appropriate  to  its  own  department  and  no  other. 

What  is  judicial  power?  This  question  Mr.  Justice  Miller  puts  in  his 
"  Lectures  on  tfie  Constitution  of  the  United  States;  "  and,  after  commenting 
upon  its  difficulty,  pmceci's  to  answer  it  hy  a  reference  to  decisions  of  the 
Supreme  C-nrt  of  the  United  States.  "  It  will  not  do,"  he  says,  "  to  answer 
that  it  is  the  power  exercised  by  the  courts,  because  one  of  the  very  things 
to  be  (Itt.-rmined  is  what  power  they  may  exercise.     It  is,  indeed,  very  diffi- 

ci'U  to  find  any  exact  definition  made  to  hand 

"Judicial  power  is,  perhaps,  better  defined  in  some  of  the  reports 
of  our  own  courts  than  in  any  other  place,  and  especially  so  in  the  Supreme 
Court  of  the  United  States,  because  it  has  more  often  l>een  the  subject  of 
comment  there,  and  its  consideration  more  freqn-ntly  i  jcessary  to  the  deter- 
mination of  questions  arising  in  that  court  thar.  anywhere  else.  It  is  the 
power  of  a  court  to  decide  am",  pronounce  a  jiulgmeiu  and  carry  it  into  ettect 
between  persons  and  parties  who  bring  a  case  before  it  for  decision."  ' 

In  this  connection,  however,  we  -inist  not  forget  that  the  tirst  F.n,t,'lish 
colonists  brought  with  them  the  common  law  of  F.ni^dand.  that  the  P.ritish 
plantations  in  .\nierica  were  therefore  fanidiar  with  the  principles  of  the 
common  law,  and  that  the  statesmen  who  framed  the  Constitution  were  born 
and  bred  in  it.  To  the  common  law,  therefore,  we  must  look  for  the  nature 
of  judicial  power,  just  as  we  look  to  the  Constitution  for  it-  extent.  It  is 
common  knowledge  that  the  first  Englishman  to  set  his  foot  upon  the  New 
World  brought  with  liim  the  rights  and  privileges  of  Englishmen  and  the 
law  liy  which  they  were  defined,  interpreted  and  protected,  and  it  would  be 
a  cheap  display  of  learning  to  quote  authority  for  t!ie  position  that  the  law 
in  force  in  England  before  the  Declaration  of  Independent  was.  m  as  f.ar 
as  it  was  applicable  to  the  colonics,  binding  upon  them  as  bodies  politic  and 
upon  the  colonists  as  English  subjects.  We  should  expect,  therefore,  to 
find  that  the  settlers  understood  judicial  power  in  the  sense  in  which  it  was 
understood  in  the  mother  country  and  that  the  statesmen  of  the  Revolution 
and  the  fr.imers  of  the  Constitution  used  the  expression  "  juduial  power" 
in  the  sense  in  which  it  was  used  in  the  jurisprudence  o\  the  old  country, 
except  in  so  far  .is  the  meaning  attached  to  that  expression  in  the  English 
system  was  consciously  modified  or  departed  from. 

'  S.  I".   Miller.  Lectures  an   the  Constitution  of  the   I'tiiu-d  Sinl.s,   189J.  pp.  M3.  J14. 


udicial 


rower 
defined  by 
Court 
luelf 


Iiilluence   of 
FDcIish 
C-jmmon  Law 


:^ 


Knglith 
Cases 

on   thr 
luijictal 


344  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

It  is  therefore  enlightening  as  well  as  instructive  to  examine  a  few  Eng- 
lish cases  dealing  with  the  nature  of  jud  cial  power,  for  by  so  doing  we  not 
only  obtain  an  insight  into  the  subject  and  enable  ourselves  to  understand 
the  state  of  mind  of  the  framers  of  the  Constitution,  but  to  comprehend  how 
the  Supreme  Court  of  the  United  States,  without  the  express  and  literal 
authority  of  the  Constitution,  has  naturally  and  inevitably  passed  upon  the 
constitutionality  of  federal  as  well  as  State  legislation. 

A  very  interesting;  and  early  case,  to  be  found  in  Professor  VVambaugh's 
Cases  on  Constitutional  Law  from  which  these  examples  are  taken),  was 
the  subject  of  discussion  in  U(tO  and  is  known  as  the  Duke  of  York's  claim 
to  the  Crown.'  Without  j,'oing  into  details,  it  is  sufficient  for  present  pur- 
poses to  state  that  the  Duke  of  York  claimed  the  English  Crown,  and  by  his 
counsel  i)resente<l  his  ciaiin  in  writinjr  to  the  Lord  Chancellor,  with  the  request 
that  it  be  laid  l.y  him  liefore  the  Lords  spiritual  and  temporal  of  the  then 
Parliament,  and  "  that  the  said  Duke  might  have  brief  and  expedient  answer 
thereof."  The  Lords  spiritual  and  temporal  were  much  troubled,  and  in  the 
end  they  sent  for  the  King's  Justices  "  to  have  their  advice  and  counsel  in 
this  behalf,  and  there  delivered  to  them  the  writing  of  the  claim  of  the  said 
Duke,  and  in  the  King's  name  gave  them  strictly  in  commandment,  sadly  to 
take  advisemenf  therein,  and  to  search  and  finfl  all  such  objections  as  might 
be  laid  against  the  same,  in  fortifying  the  King's  right."  .Apparently,  the 
Justices  were  also  much  troubled  by  this  request,  for.  when  summoned  before 
the  Lords  spiritual  and  temporal  for  answer,  thev  said: 


1  hat  they  were  the  Kyngs  Justices,  and  have  to  determvne  such  maters 
as  con;  liefore  thfvni  in  the  lawe,  betwenc  panu-  and  part'ie.  and  in  such 
maters  as  been  betux-ne  panic  and  partit.  they  may  imi  In-  of  t'ounseill ;  and 
sith  this  mater  was  betwfne  the  Kyni,'  and  llic  >oid  Due  of  Votk  as  two 
parties,  and  also  it  hath  not  In-  accusiunied  to  oalie  tlic  lusticcs  to  t'ounseill 
in  such  maters  ....  they  bi  iihle  hysought  all  the  Lordes.  to  have  thcym 
utttTiy  excused  of  eny  avycc  or  Counseill,  bv  llievni  to  be  yeven  in  that 
matier.' 

In  Clark's  Casr  (5  Coke's  Reports,  64a).  decided  in  1.=^%.  it  .appeared  that 
the  town  of  St.  Albans,  with  the  assent  of  the  plaintiff  and  other  '  irgesses 
"did  as-^ss  a  sum  on  every  inhabitant  for  the  charges  in  erecting  tlic  court- 
there;  an<l  ordained,  that  if  any  should  refn-.e  to  p.ay.  &c.  that  he  should  be 
imprisoned."  The  Court  of  Common  Plea-  held,  however,  that  the  ordinance 
to  this  effect  was  null,  as  contrary  to  the  .Magna  Charta.  Chapter  29.  pro- 
viding that  nulliis  libcr  homo  uiipnsonctur.  The  court  al.so  held  that  the 
consent  of  the  f)laintiff  could  not  enable  it  to  take  jurisdiction  forbidden  by 

|Kugenr  \VamhauKli,  .(  Sclerlum  of  (.  jj.-j  on  ConslilutioHai  Uzv,  1914.  Book  i,  pp.  I-J. 
5  Kotuu  Parlmmenlorum,  J75-6. 


THE   NATURE  OF  JUDICIAL   fOWER 


345 


ed  Pro- 

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fl 

sti(in  vv;:^ 

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ird 

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th. 

consent   >£ 

law.  and  that,  while  the  corporation  of  St.  Albans  could  not  impose  imprison- 
ment for  a  failure  to  pay  the  charge,  as  ihis  was  contrary  to  the  ''atute,  it 
might  very  properly  have  imposed  a  penalty  or  a  fine. 

A  few  years  later,  in  1607,  a  very  interesting  case  aro^ 
hibitions  Del  Roy  (12  Coke's  Reports,  63.  65),  which  invoi^ 
whether  James  I  as  King  of  England  could  himself  admii 
tween  party  and  party,  or  whether  law  or  justice,  bein; 
judicial  power,  could  only  be  administered  by  the  court. 
one  of  such  importance  that  all  the  Judges  of  England 
chequer  were  summoned  before  his  Majesty,  and  Sir 
Chief  JiTStice  of  the  Common  Pleas,  spoke  on  behalf  and 
the  judges,  denying  the  claim  of  the  King  to  dispense  jusuvc  in  ;iie  concrete 
case.  The  question  involved  in  this  dispute  between  the  King  and  the  court  is 
so  material  to  the  functions  of  a  court,  and  so  clearly  states  the  necessity  of 
independence  on  the  part  of  judges,  as  to  deserve  quotation.  After  the  state- 
ment of  Lord  Coke  that,  although  justice  is  administered  in  the  name  of  the 
King,  the  judgment  is  nevertheless  reached  and  delivered  by  the  judges  of  the 
court,  sworn  to  execute  justice  according  to  the  law  and  custom  of  Lngland, 
the  King  said,  as  reported  by  his  Lordship,  "  He  thought  the  law  was 
founded  upon  reason,  and  that  he  and  others  had  reason,  as  well  as  e 
Judges."    To  which  the  Chief  Justice  answered : 

True  it  was,  that  God  had  endowed  his  Majesty  with  excellent  scit 
and  great  endowments  of  nature;  but  His  Majesty  was  not  learned  in  the 
laws  of  his  realm  of  England,  and  causes  whicli  concern  the  life,  or  inherit- 
ance, or  ^oods.  or  fortunes  of  his  subjects,  are  not  to  be  decided  by  natural 
reason  but  by  the  artificial  reason  and  judgment  of  law,  wliich  law  is  an 
act  which  requires  long  study  and  experience,  before  that  a  man  can  attain  to 
the  cognizance  of  it:  and  that  tlie  law  was  the  golden  niet-wand  and  nicasure 
to  try  the  causes  of  the  subjects;  and  which  protected  his  Majtsiy  in  safety 
and  peace:  with  which  the  King  was  greatly  otTended.  and  said,  that  then 
he  should  be  under  the  law,  which  was  treason  to  affirm,  as  he  said;  to 
which  I  said,  that  Bracton  saith,  quod  Rex  }wn  debet  esse  sub  homine.  scd 
sub  Deo  et  lege. 

This  solemn  opinion  of  the  judges,  given  under  these  tr>'ing  circumstances, 
denying  the  judicial  power  to  the  executive,  was  not  a  deterrent  to  a  man  of 
King  James'  type,  who  not  only  claimed  the  power  to  interpret  the  law  but  to 
make  that  law  which  he  claimed  the  right  to  interpret.  In  the  matter  of 
Proclamations  ( 12  Coke's  Reports.  "4-6),  which  was  argued  before  the  Privy 
Council  in  1610,  Lord  Chief  Justice  Coke  again  came  into  collision  with  his 
Majesty,  who  claimed  the  right  to  prohibit  new  buildings  in  and  alwut  Lon- 
don, and  likewise  by  proclamation  to  prohibit  the  making  of  starch  out  of 
wheat.    As  these  acts  on  the  part  of  his  Majesty  were  regarded  as  grievances 


W 


^f 


f^' 


346  THE  UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  OBGANUATION 

and  against  law  and  justice,  the  King  conferred  with  his  Privy  Council  and 
his  judges.  Lord  Coke  again  expressed  his  opinion  as  became  a  judge, 
saying  squarely  that  "the  King  cannot  change  any  part  of  the  common  law', 
nor  create  any  offence  by  his  proclamation,  which  was  not  an  offence  before, 
without  Parliament."  But,  recognizing  the  importance  of  the  question.  Lord 
Coke  asked  "to  have  a  time  of  consideration  and  conference"  with  his 
brethren,  a  request  which  was  reluctantly  granted.  The  result  of  the  con- 
sideration and  conference  is  thus  reported  by  Coke  himself: 

In  the  same  term  it  was  resolved  by  the  two  Chief  Justices,  Chief  Baron 
and  Baron  Altham.  upon  conference  betwixt  the  Lords  of  the  Privy  Council' 
and  them,  that  the  King  by  his  proclamation  cannot  create  any  offence  which 
was  not  an  offence  before,  for  then  be  niav  alter  the  law  of  the  land  by  his 
proclamation  m  a  high  point :  for  if  be  may  create  an  offence  where  none  is, 
upon  that  ensues  hne  and  imprisonment ;  also  the  law  of  England  is  divided 
mto  three  parts,  common  law,  statute  law,  and  custom;  but  the  King's 
proclamation  is  none  of  them. 

It  is  believed  that  these  cases,  tried  and  decided  before  an  English  colony 
had  been  firmly  planted  in  America,  show  that  the  conception  of  judicial 
power,  as  it  was  later  to  obtain  in  America,  was  already  well  understood  in 
the  mother  country,  and  that,  because  of  that  fact,  it  was  bound  to  prevail  in 
the  English  speaking  portion  of  the  New  World.  Before  considering  the 
American  cases  dealing  with  this  subject,  it  is  advisable  to  refer  to  two  further 
English  cases,  decided  after  the  establishment  of  the  American  colonies,  but 
before  the  Declaration  of  Independence. 

The  first  case  is  Kfx  v.  Cutbiisli  (4  Burrow,  2204,  2208),  decided  by 
the  King's  Bench  in  1768.  This  was  upon  what  is  called  an  information,  in 
the  nature  of  a  quo  icarraiito,  brought  against  the  defendant  to  show  by 
what  warrant  he  claimed  to  l)e  a  common  councilman  of  Maidstone.  It  ap- 
pears that  Maitlstone  was  incorporated  in  the  twenty-first  year  of  King 
George  II,  under  the  name  of  "the  mayor,  jurats,  and  commonalty  of  the 
Kin,s,''s  town  and  pari>h  of  Maidstone  in  the  county  of  Kent."  tne  charter  of 
incorporaticm  providing  that  thirteen  of  the  inhabitants  should  be  chosen 
Jurats  and  one  of  the  Jurats  Mayor,  and  that  forty  of  the  remaining  prin- 
cipal inhabitants  should  be  chi)sen  as  the  Common  Council  of  the  said 
town  and  parish.  On  the  plea  tliat  the  Commonalty  of  Maidstone  was 
very  mmierous.  and  that  an  admission  of  them  to  vote  in  the  election  of 
a  common  councilman  had  been  found  by  experience  to  occasion  divers 
riots,  disorders,  and  great  popular  confusion,  the  Mayor.  Jurats  and  Com- 
mon Council  made  a  by-law  providing  that,  in  lieu  of  election  by 
the  Commonalty,  the  Common  Councilmen  should  be  elected  by  the  pres- 
ent members  thereof  and  sixty  others,  who,  at  the  time  of  the  election, 


THE  NATURE  OF  JUDICIAL  POWEK 


347 


should  be  the  senior  common  freemen  of  the  said  town  and  parish  of 
Maidstone  as  they  should  stand  in  order  and  place  of  seniority  upon  the 
books  of  admission  of  freemen  of  the  said  town  and  parish.  The  defendant, 
Cutbush,  was  elected  a  common  councilman  pursuant  to  this  by-law.  If  the 
by-law  was  valid,  he  was  properly  elected;  if  the  by-law  was  inconsistent 
with  the  charter  of  incorporation,  he  was  then  illegally  elected  and  not  entitled 
to  hold  the  office.  The  court  was  unanimously  of  the  opinion  that  the  by-law 
was  bad,  that  it  was  contrary  to  the  intention  of  the  charter,  Lord  Chief  Jus- 
tice Mansfield  saying: 

It  is  made  by  a  part  of  the  corporation,  to  deprive  the  rest  of  thiir  right 
to  elect,  without  their  consent.  The  charter  gives  this  right  to  tiu'  whole 
body  of  the  commonalty ;  the  by-law  confines  it  to  a  narrow  compass  of  the 
sixty  seniors  only.     This  expressly  contradicts  the  charter. 

Mr.  Justice  Yates  concurred  with  Lord  Mansfield,  and  added  that: 

Where  a  corporation  is  by  charter,  and  the  common-council  is  created 
by  the  charter,  thev  ought  (as  being  the  creature  of  the  charter)  to  bu  re- 
strained from  making  any  by-laws  inconsistent  with  it,  or  counteracting  the 
end,  intentions  and  directions  of  it. 

The  second  of  these  cases  is  Campbell  v.  Hill  (Cowper,  204,  212,  213), 
decided  by  the  King's  Bench  in  1774.  upon  the  eve  of  the  .American  Revolu- 
tion.   For  present  purposes,  it  is  sufficient  to  say  that  the  Island  of  Grenada 
had  been  captured  from  the  French  and  ceiled  to  Great  Britain  by  the  treaty 
of  FebruarN  10.  1763:  that  by  |.roclamatinns  of  King  George  III  dated  Octo- 
ber 7,  1763,  and  April  9,  1764,  the  Crown  empowered  the  Governor,  as  soon 
as  the  state  o:  the  Island  should  permit,  to  summon  p  General  .Assembly  in  the 
manner  useil  in  the  colonies  and  provinces  of  America;  and  that  such  assem- 
blies should  make  laws  with  the  consent  of  the  Governor  and  Council.    .After 
the  issuance  ot  the  proclamation  of  October  7.   1763,  the  King  issued  a 
further  proclamation,  laying  an  export  duty  of  4^  per  cent  upon  all  of  the 
commodities  produced  in  the  Island.    The  defendant  collected  the  duties  from 
the  plaintiff,  who  sued  in  an  action  of  m.jney  had  and  received,  to  recover  the 
amount  of  the  export  duties  which  he  had  been  obliged  to  pay.    The  questiiMi 
was  whether  the  King  could,  hy  a  later  proclamation,  lay  an  export  tax  tipon 
the  prodt'.ce  of  the  Island  when,  i)v  the  earlier  proclamation  of  Octolnr  7, 
1763,  he  had,  to  quote  Lord  Mansfield's  lanjruacr.    '  prvcludcd  himself  from 
the  exercise  of  a  legislative  authority  over  the  island  of  Grenada."    On  this 
point  the  court  was  unanimous,  holding  that  "  the  King  had  immediately  and 
irrcrocahls  granted  to  all  who  were  or  shoidd  become  inh.abitants,  or  who 
had,  or  should  acquire  property  in  the  Island  of  Grenada,  or  more  generally 


I 
I 


f 


~Pkj5SpflrT3 


348         THE  UNITID  ITATM:  a  rrUBY  in   INTKINATIONAL  OICANIIATION 

to  all  whom  it  might  concern,  that  the  subordinate  legislation  over  the  island 
should  be  exercised  by  an  assembly  with  the  consent  of  the  governor  and 
council,  in  like  manner  as  the  other  islands  belonging  t.)  the  king."    As  in 
the  case  of  Rex  v.  Culbush.  where  we  have  the  judicial  power  declaring  the 
by-law  of  the  parish  of  Maidstone  void  as  inconsistent  with  the  charter  of 
incorporation,  that  is  to  say.  the  judicial  power  settin;;  aside  an  act  of  the 
legislature  (in  this  case  a  corporation)  inconsistent  with  the  grant,  so  in  the 
case  of  Campbell  v.  Hall,  we  have  the  judicial  power  taking  jurisdiction  of 
an  act  of  the  executive  and  declaring  it  inconsistent  with  the  Inw  of  the  land. 
We  are  now  prepared  to  consider  a  leading  case  of  colonial  times,  in 
which  the  judicial  power  of  the  mother  country  set  aside  an  act  of  the 
colonial  legislature  of  Connecticut  and  a  judgment  of  the  Connecticut  Court 
of  Probate  organized  under  the  charter  of  the  colony,  as  the  act  and  the 
jucigjnent  were  in  excess  of  the  power  granted  by  the  charter.     The  case  of 
WintUrop  v.  Lcchmere  (7  Connecticut  Colonial  Records.  571),  decided  by 
the  Privy  Council  in  1728.  involved  the  validity  of  an  act  of  the  colonial 
legislature,  providing  that,  in  the  case  of  a  person  dying  intestate,  the  realty 
should  descend  to  the  male  and  female  children  of  the  deceased,  and  that  the 
male  should  receive  a  double  portion,  contrary  to  the  law  of  descent  in  Enf^- 
land.  which,  in  such  a  case,  vested  all  the  realty  in  the  male  to  the  exclusion 
of  the  female.    From  the  decision  of  the  Connecticut  Court,  distributing  the 
property  according  to  the  colonial  statute,  the  male  child,  one  Winthrop.  son 
of  the  deceased  intestate,  appealed  to  the  King  in  Council  to  admit  an  appeal, 
which  had  been  disallowed  by  the  Connecticut  authorities.     The  appeal  was 
granted  and  the  appeal  was  referred  to  the  Committee  for  Hearing  .Appeals 
from  the  Plantations.    The  question  was  elaborately  argued  for  the  appellant 
by  Sir  Philip  Yorke.  then  Attorney  General,  later  Lord  Chancellor  Hard- 
wicke.  and  Sir  Charles  Talbot,  then  Solicitor  General  and  later  Lord  Chan- 
cellor Talbot,  with  the  result  that  the  Committee  for  Hearing  Appeals  from 
the  Plantations  advised  his  Majesty  "  that  the  said  act  for  the  settlement  of 
Intestate  Estates  should  he  declared  null  and  void,  being  contrary  to  the 
laws  of  England,  in  regard  it  makes  lands  of  inheritances  distributable  as 
personal  estates,  and  is  not  warranted  by  the  charter  of  that  Colony."     We 
here  have  the  act  of  a  legislature  of  a  body  politic,  a  colony,  and  later  to  be  a 
State  of  the  American  Union  under  this  very  charter,  set  aside  as  null  and 
void  by  a  committee  exercising  judicial  powers. 

We  are  justified  in  saying'  that,  before  the  outbreak  of  the  -American 
Revohiti(Mi.  the  lawyers  and  -tnte^men  of  England  as  well  as  of  the  colonies 
were  familiar  with  that  cotireptirm  of  judicial  power,  by  virtue  of  which  it 
refused,  as  in  the  case  of  the  Dnke  of  York's  claim,  to  pass  upon  a  political 
question;  by  virtue  of  which  it  denied  to  the  executive  the  right  to  administer 


TBI  NATURE  OF  JUDICIAL  POWU 


349 


An 

Affl«rkin 

C»c 


justice  between  parties  litigant  and  the  right  to  issue  proclamations,  decree 
prohibitions  inconsistent  with  the  law,  or  to  make  law ;  and  by  virtue  of  which 
a  by-law  of  an  incorporated  town  and  an  act  of  the  legislature  of  a  colony 
were  held  by  the  judicial  power  to  be  in  excess  of  the  grant  of  power  con- 
tained in  the  charter. 

These  are  English  precedents,  with  which  the  lawyers  of  the  colonies  were 
familiar,  or  of  which  they  were  ignorant  at  their  peril.  W'c  have,  however, 
an  American  case,  decided  in  1780,  one  year  before  the  Articles  of  Con- 
federation creating  the  Confederacy  went  into  operatioi  ami  by  the  Chief 
Justice  of  the  court,  a  framer  of  the  more  perfect  Union,  participating  in 
the  trial  and  disposition  of  the  case.  In  Holmes  v.  Walton,^  for  this  is  the 
case  to  which  reference  has  been  made,  it  appeared  that  one  Wal'  .  acting 
under  a  staiute  of  the  State  of  New  Jersey  passed  October  8,  17/ ,s,  M-ized 
goods  in  the  possession  of  Holmes  and  Ketcham  which  had  been  brought  into 
the  American  lines  from  a  place  in  possession  of  the  British,  and,  in  con- 
formity with  the  statute,  Walton  took  the  goods  before  a  Justice  of  the  Peace. 
And,  still  acting  under  the  statute,  which  required  the  Justice  to  grant  a  jury 
of  six  men  upon  the  demand  of  either  party  and  forbade  an  appeal  in  case  of 
verdict,  a  jury  of  six  was  appointed,  a  verdict  thereof  given  in  favor  of  Wal- 
ton and  judgment  entered  accordingly  in  his  favor.  Notwithstanding  the 
inhibition  of  the  statute,  the  defendant  appealed  to  the  Supreme  Court  of  New 
Jersey,  invoking  in  his  behalf  section  XXII  of  the  Constitution  of  New  Jersey, 
adopted  July  2,  1776,  providing  "  that  the  inestimable  right  of  trial  by  jury  rl"%  on*" 
shall  remain  confirmed  as  a  part  of  the  law  of  this  colony,  wit.  lUt  repeal  for-  antv  li"  a"  " 
ever."  and  calling  attention  to  the  fact  that  the  verdict  of  the  jury  uj.  n  which  Act 
judgment  was  rendered  consisted  of  six  men  only,  when,  "  by  the  la\v>  .  f  the 
land  it  should  have  consisted  of  twelve  men."  As  a  jury  of  six  was  unknown 
to  the  common  law,  the  defendant  insisted  that  the  verdict  be  set  aside.  The 
case  was  one  in  which  the  feeling  of  the  community  was  with  the  plaintiff 
below,  who  had  seized  goods  found  in  possession  of  the  British  and  brought 
them  within  the  American  lines.  The  court  apparently  was  in  doubt,  so  that 
it  took  time  to  consider,  but  on  September  7,  1780,  in  the  presence  of  all 
the  judges  (among  them  David  Brearley.  Chief  Justice,  and  later  a  delegate 
of  his  State  to  the  Constitutional  Convention),  the  following  mandate  was 
entered : 

This  cause  having  been  argued  several  terms  past  and  the  court  having 
taken  time  to  consider  the  same,  and  being  now  ready  to  deliver  their  opinion, 
gave  tlic  same  seriation  for  the  plaintitTs  in  certiorari  And  on  motion  of 
Hoiidinot  for  the  plaintiffs,  judgment  is  ordered  for  the  plaintitTs,  and  that 
the  judfiment  of  the  justice  in  the  court  below  be  reversed.  .  .  .' 


•  Thf  /tmerican  Historical  keview.  Vol.  IV,  pp.  456-69  (April,  1899). 

*  W'ambangh,  Cases,  Book  I,  p.  22. 


V       l 


mk  ' 


350 


THE   UNITED  STATES:   A  STUDY   IN   INTBINATIONAt  OBCANIZATION 


¥      f 


#■' 


E>lr>- 

judicial 

bull** 


It  was  natural,  therefore,  that  the  framers  of  the  Constitution  should 
regard  as  a  proper  exercise  of  the  judicial  power  a  decree  of  a  court  setting 
aside  an  act  of  the  Congress  of  the  United  Sta'es,  or  a  provision  of  the 
constitution  of  a  State,  or  an  act  of  its  legiiilature  or  of  the  executive  depart- 
ment as  inconsistent  with  the  grant  of  power  in  the  Constitutiun  of  the 
United  States. 

Continuing  what  may  be  called  the  general  phase  of  the  subject,  there  are 
instructive  instances  of  an  attempt  to  invest  judges  with  the  performance 
of  other  than  judicial  duties,  which  bring  into  prominence  the  essence  of 
judicial  power  and  of  judicial  duty  under  the  constitutional  grant.  Shortly 
after  the  government  was  organized  under  the  present  Constitution,  on 
March  4,  1789.  an  act  of  Congress  was  passed  "to  provide  for  the  settle- 
ment of  the  Claims  of  Widows  and  Orphans  barred  by  the  limitations  hereto- 
fore established,  and  to  regulate  the  Claims  to  Invalid  Pensions."  '  The 
duty  to  determine  these  claims  was  assigned  to  the  Circuit  Courts  of  the 
United  States,  organized  in  pursuance  of  the  judiciary  act  of  September  25, 
1789.  Each  of  the  three  Circuit  Courts,  into  which  the  United  States  was 
divided,  considered  the  question,  and,  although  deeply  interested  in  the  pur- 
pose of  the  act  and  desirous  of  complying  with  it,  insofar  as  the  limits  of 
judicial  power  would  permit  them  to  do  so.  the  judges  stated  it  to  be  their 
opinion  that  the  duty  imposed  by  the  act  was  inconsistent  with  judicial 
power,  and  that  therefore  the  court  could  not,  and  that  the  judges  should  not, 
comply  with  it.  The  Circuit  Court  for  the  District  of  New  York,  consisting 
of  Jay,  Chief  Justice.  Cushing.  Justice,  and  Duane.  District  Judge,  stated  that 
the  judges  of  the  Circuit  were  unanimously  of  the  opinion: 

That  by  the  Constitution  of  the  United  States,  the  government  thereof 
is  dividod  into  three  distinct  and  independent  branches,  and  that  it  is  the 
duty  of  each  to  abstain  from,  and  to  oppose,  encrcichments  on  either. 

That  neither  the  Legislative  nor  tlie  Execiilitr  branches,  can  constitu- 
tionally assign  to  the  Judicial  any  duties,  but  such  as  are  properly  judicial, 
and  to  be  iKTioniied  in  a  judicial  manner. 

That  the  duties  assigned  to  the  Circuit  courts,  by  this  act.  are  not  of  that 
description,  and  that  the  act  itself  does  not  appear  to  contemplate  them  as 
such ;  in  as  much  as  it  subjects  the  decisions  of  these  courts,  made  pursuant 
to  those  duties,  first  to  the  consideration  and  suspension  of  the  Secretar>-  at 
\yar,  and  then  to  the  revision  of  the  LeKislature;  whereas  by  the  Constitu- 
tion, neither  the  Secretary  at  War.  nor  any  other  Executive  officer,  nor  even 
the  Legislature,  are  authorized  to  sit  as  a  court  of  errors  on  the  judicial 
acts  or  opinions  of  this  court.' 

The  Circuit  Court  for  the  District  of  Pennsylvania,  consisting  of  Wilson 
and  Blair,  Justices,  and  Peters,  District  Judge,  made  the  following  repre- 

'  1   Statutes  .It  Large.  2A3. 
'Hayburn'j  Case,  2  Dallas.  410,  Note. 


THI    .^ArVRK  or  JUDICIAL   POWIR 


3S1 


sentation  to  the  President  of  the  United  States  in  a  letter  dated  April 
18.  1792: 

To  you  it  oflRcially  bflofiRs  to  "  take  care  that  the  laws  "  of  the  United 
States  "  l)c  faithfully  executed."  Before  you,  therefore,  we  think  it  our 
dutv  to  lay  the  sentiments,  which,  on  a  late  painful  occasion,  governed  us 
with  regard  to  an  act  passed  hy  the  legislature  of  the  Union. 

The  people  of  the  United  States  have  vested  in  Congress  all  legislative 
powers  "  granted  in  the  constitution." 

I  hey  have  vested  in  one  Supreme  court,  and  in  such  inferior  courts  as 
the  Congress  shall  establish.  "  the  jtiiiicial  power  of  the  United  States."  .    .   . 

This  I  (in>titution  is  "the  Supriiiic  Law  of  the  Land"  This  supreme 
law  "  all  judicial  officers  of  the  United  States  are  bound,  by  oath  or  amrma- 
tion.  to  support." 

It  is  a  principle  important  to  freedom,  that  in  government,  the  judicial 
shoultl  l)e  distinct  from,  and  independent  of,  the  legislative  department. 
To  this  important  principle  the  people  of  the  United  States,  in  forming  their 
Constitution,  have  manifested  the  highest  regard. 

They  have  placed  their  judicial  ptiwer  not  in  Congress,  but  in  "  courts." 
They  have  ordained  that  the  "Judges  of  those  courts  shall  hold  their  offices 
during  gtKid  behaviour,"  and  that  "  during  their  continuance  in  office,  their 
salaries  shall  not  lie  diminished." 

longu-is  have  lately  passed  an  act,  to  regulate,  among  other  things, 
"  the  claims  to  invalid  pen.iinns." 

Upon  due  consideration,  we  have  been  unanimotisly  of  opinion,  that, 
under  this  act,  the  Circuit  court  held  for  the  Pennsylvania  district  could  not 
proceed ; 

1st.  Because  the  business  directed  by  this  act  is  not  of  a  judici.il  nature. 
It  forms  no  part  of  the  power  vested  by  the  Constitution  in  the  courts  of  the 
United  States ;  the  Circuit  court  must,  consequently,  have  proceeded  without 
constitutional  authority. 

2d.  Because,  if,  upon  that  business,  the  court  had  proceeded,  its  judg- 
ments (  lor  its  o/'iitioHS  are  its  judgments)  might,  under  the  same  act.  have 
been  revised  and  controuled  by  the  legislature,  and  by  an  oflficcr  in  the 
executive  department.  Such  revision  and  controul  we  deemed  radically 
inconsistent  with  the  independence  of  that  judicial  power  which  is  vested  in 
the  courts;  and,  consequently,  with  that  important  principle  which  is  so 
strictly  observed  by  the  Constitution  of  the  United   States  ' 

The  Circuit  Court  for  the  District  of  Xorth  Carolina,  consisting  of  Ire- 
dell, Justice,  and  Sitgrcaves,  District  Judge,  thus  addressed  the  President  of 
the  United  States  on  June  8,  1792: 

1.  That  'he  Legislative,  Executive,  and  Judicial  departments,  arc  each 
formed  in  a  separate  and  independent  manner;  and  that  the  ultimate  basis  of 
t^Jn  is  the  Constitution  only,  within  the  limits  of  which  each  department  can 
alone  justify  any  act   of  authority. 

2.  That  the  Legislature,  among  other  important  powers,  unquestionably 
possess  that  of  establishing  courts  in  such  a  manner  as  to  their  wisdom 

>2  Dallas.  411,  Note.    For  the  facts  of  the  "painful  occasion"  referred  to  above,  see 
post,  p   jdS. 


«Maracopv  MsoumoN  tbt  OMtr 

(ANSI  and  ISO  TtST  CHART  No.  2) 


I.I 


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iti 


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Hi 

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A 


/APPLIED  IM/OE    Inc 

1655   tost   MoiP   SlfMt 

RoQhttiv.   *«••   Yort         14609       US* 

(716)   482  -  0300  -  PHorw 

(Tifi)  266  ~  &9S9  -  Fa> 


p/ 


352  THE   UNITED  STATES:  A   STUDY   IN   INTraNATIONAL  ORGANIZATION 

shall  appear  best,  limited  by  the  terms  of  the  constitution  only;  and  to 
whatever  extent  that  power  may  be  exercised,  or  however  severe  the  duty 
they  may  think  proper  to  require,  the  Judges,  when  appointed  in  virtue  of 
any  such  establishment,  owe  implicit  and  unreserved  obedience  to  it. 

3.  That  at  the  same  time  such  courts  cannot  be  warranted,  as  we  con- 
ceive, by  virtue  of  that  part  of  the  Constitution  delegatinR  Judicial  poivcr, 
for  the  exercise  of  which  any  act  of  the  legislature  is  provided,  in  exercising 
(even  under  the  authority  of  another  act)  any  power  not  in  its  nature 
judicial,  or,  if  judicial,  not  provided  for  upon  the  terms  the  Constitution 
requires. 

4.  That  whatever  doubt  may  be  suggested,  whether  the  power  in  ques- 
tion is  properly  of  a  judicial  nature,  yet  inasmuch  as  the  decision  of  the 
court  is  not  made  final,  but  may  be  at  least  suspended  in  its  operation  by  the 
Secretary  at  War,  if  he  shall  have  cause  to  suspect  imposition  or  mistake; 
this  subjects  the  decision  of  the  court  to  a  mode  of  revision  which  we  con- 
sider to  be  unwarranted  by  the  Constitution ;  for,  though  Congress  may  cer- 
tainly establish,  in  instances  not  yet  provided  for,  courts  of  appellate  juris- 
diction, yet  such  courts  must  consist  of  judges  appointed  in  the  manner  the 
Constitution  requires,  and  holding  their  offices  by  no  other  tenure  than  that 
of  their  good  behaviour,  by  which  tenure  the  office  of  Secretary  at  War  is 
not  held.  And  we  beg  leave  to  add,  with  all  due  deference,  that  no  decision 
of  any  court  of  the  United  States  can,  under  any  circumstances,  in  our 
opinion,  agreeable  to  the  Constitution,  be  liable  to  a  reversion,  or  even  sus- 
pension, by  the  Legislature  itself,  in  whom  no  judicial  power  of  any  kind 
appears  to  be  vested,  but  the  important  one  relative  to  impeachments.' 

The  question  as  to  whether  the  act  of  Congress  conferred  upon  the  Cir- 
cuit Court  a  judicial  function,  and  whether  the  Federal  judges  could  act  as 
commissioners  if  they  could  not  act  as  judges,  arose  in  1792  in  Hayburn's 
case  (2  Dallas,  409).  It  was  then,  however,  not  decided  by  that  august 
tribunal,  as  it  took  the  question  under  advisement  until  the  next  term.  But 
no  decision  was  ever  pronounced,  as  the  sections  of  the  act  of  1792  under 
which  action  had  been  taken  were  in  the  meantime  repealed,  and,  as  the  re- 
porter informs  us,  the  legislature  at  the  intermediate  session  provided  in 
another  way  for  the  relief  of  the  pensioners.  While  it  is  correct  to  say,  as 
is  often  done,  that  Hayburn's  case  did  not  decide  the  question,  it  was  not  left 
undecided,  as  it  appears  from  a  note  by  Mr.  Chief  Justice  Taney,  appended 
to  the  case  of  United  States  v.  Fcrrcira  (13  Howard,  40),  decided  in  1851, 
that  the  exact  question  was  raised  and  decided  in  1794  by  the  Supreme  Court 
in  the  case  of  United  States  v.  Todd. 

An  act  of  Congress  was  passed  in  1793,  directing  the  Secretary  of  War 
and  the  .Attorney  General  to  get  the  opinion  of  the  Supreme  Court  upon  the 
question,  and  the  court,  contrary  to  subsequent  practice,  assumed  jurisdiction 
on  the  theory  that  the  act  in  question  gave  it  original  jurisdiction.  An  agreed 
statement  of  facts  was  presented,  setting  forth  that  on  May  3,  1792,  one  Yale 


'  2  Dallas.  412,  Note. 


THE  NATURE  OF  JtJDICIAL  POWER 


353 


Todd  appeared  before  the  Circuit  Court,  composed  of  John  Jay,  Chief  Justice, 
William  Cushing,  Justice,  and  Richard  Law,  District  Judge,  then  sitting  in 
New  Haven  and  acting  as  commissioners  under  the  act  of  1792;  that  Todd 
si'bmitted  his  claim  undci  the  act  to  the  court,  supporting  it  by  evidence,  and 
that  the  court  delivered  tho  opinion  that  Todd  should  be  placed  upon  the 
pension  list.  A  certificate  of  the  proceedings  and  opinion  of  the  court  was, 
on  May  8,  1792,  transmitted  to  the  Secretary  of  War,  who,  following  the 
opinion  of  the  court,  placed  Todd  upon  the  pension  list  and  paid  over  to  him, 
in  accordance  with  the  opinion  and  on  behalf  of  the  United  States,  the  sum 
of  $150  for  arrears  and  $22.91  for  rjension  to  be  due  in  September.  The 
United  States,  in  order  to  test  the  question,  sued  Todd  as  defendant  to  recover 
payment  of  the  sum  of  $172.91.  it  being  agreed  in  this  remarkable  proceeding 
that  if  the  judges  of  the  Circuit  Court  "  sitting  as  Commissioners,  and  not  as  P»*^  »* 
a  Circuit  Court,"  had  power  to  entertain  and  decide  the  case,  judgment  should  ^*  j«Vi 
be  given  for  the  defendant;  whereas,  if  the  Circuit  Court,  sitMng  as  commis- 
sioners, was  not  authorized  to  have  taken  jurisdiction  and  to  adjudge  the 
original  case,  judgment  should  be  entered  against  Todd  for  the  sum  of 
$172.91  and  six  cents  costs.  Todd  appeared  by  distinguished  counsel  and 
the  case  was  argued  by  the  Attorney  General  on  behalf  of  the  United  States. 
In  the  following  passage  from  the  note  to  United  States  v.  Fcrreira,  giving 
the  facts  and  the  decision  in  the  Todd  case.  Mr.  Chief  Justice  Taney  not  only 
states  the  decision  of  the  court  but  comments  upon  it : 

Chief  Justice  Jay  and  Justice  Cushing.  Wilson,  Blair,  and  Paterson, 
were  present  at  the  decision.  Xo  opinion  was  tiled  stating  the  grounds  of 
the  decision.  Nor  is  any  dissent  from  the  judgment  entered  on  the  record. 
It  would  seem,  therefore,  to  have  been  unanimous,  and  that  Chief  Justice 
Jay  and  |ustice  Cushing  became  satisfied,  on  further  reflection,  that  the 
power  given  in  the  act  of  1792  to  the  Circuit  Court  as  a  court,  could  not 
be  construed  to  give  it  to  the  judges  out  of  court  as  con.  iif^^ioncrs.  It 
must  be  admitted  that  the  justice  of  the  claims  and  the  meritorious  char- 
acter of  the  claimants  would  appear  to  have  exercised  some  influence  on  their 
judgments  in  the  first  instance,  and  to  have  led  them  to  give  a  construction 
to  the  law  which  its  language  would  hardly  justify  upon  the  most  liberal 
rules  of  interpretation. 

The  result  of  the  opinions  expressed  by  the  judges  of  the  Supreme  Court 
of  that  day  in  the  note  to  Hayburn's  case,  and  in  the  case  of  the  United 
States  r.  Todd,  is  this : 

1  That  the  power  proposed  to  be  conferred  on  the  Circuit  Courts  of 
the  United  States  by  the  act  of  1792  was  not  judicial  power  within  the  mean- 
ing of  the  Constitution,  and  was.  therefore,  unconstitutional,  and  could  not 
lawfully  be  exercised  by  the  courts. 

2.  That  ar,  the  act  of  Congress  intended  to  confer  the  power  on  the 
courts  as  a  judicial  function,  it  could  not  be  construed  as  an  authority  to  the 
judges  composing  the  court  to  exercise  the  power  out  of  court  in  the  char- 
acter of  commissioners.* 

•  13  Howard,  S2-3,  Note. 


Further 

DistinctiOB 

between 

J'Hictal 

a  id  Other 

Powert 


354  THE  UNITED  STATES:   A  STUDY  IN   INTERNATIONAL  ORGANIZATION 

It  thus  appears  that  the  Supreme  Court  decided,  within  a  very  few  years 
after  its  institution,  as  it  has  since  held,  that  the  Federal  courts  could  only 
exercise  judicial  power;  and  the  decision  is  all  the  more  noteworthy,  as  the 
case  was  one  in  which  the  sympathy  of  the  judges  was  deeply  enlisted  and 
in  which  some  of  them  had  acted  as  individuals,  although  they  felt  that  they 
could  not  act  ol'icially  as  judges. 

Two  further  cases,  dealing  with  the  general  attributes  of  judicial  as  dis- 
tinguished from  legislative  or  executive  power,  deserve  examination  in  this 
connection,  in  each  of  which  the  opinion  was  prepared  by  Chief  Justice 
Taney,  who  worthily  wore  the  mantle  of  the  great  Chief  Justice.  The  first 
case  to  be  considered  is  that  of  United  States  v.  Ferreira,  decided  in  1851, 
to  which  United  States  v.  Todd  was  appended  as  a  note.  This  case  grew  out 
of  the  treaty  of  February  22,  1819,  between  the  United  States  and  Spain,  by 
which  the  latter  country  ceded  Florida  to  the  United  States,  and  two  acts  of 
Congress  were  passed  in  order  to  give  effect  to  the  following  stipulation  con- 
tained in  that  treaty : 

The  United  States  shall  cause  satisfaction  to  be  made  for  the  injuries, 
if  any,  which  by  process  of  law  shall  be  established  to  have  been  suffered 
by  the  Spanish  officers  and  individual  Spanish  inhabitants  by  the  late  opera- 
tions of  the  American  army  in  Florida.* 

By  three  acts  of  Congress  of  1823,  1834  and  1849,  the  judge  of  the  ter- 
ritorial court  of  Florida,  and  later  the  judge  of  the  District  Court  of  the 
United  States  for  the  northern  district  of  Florida,  was  directed  to  receive, 
examine  and  adjudge  all  cases  and  claims  for  losses  and  to  report  his  decisions 
in  favor  of  the  claimants,  together  with  the  evidence  upon  which  they  were 
based,  to  the  Secretary  of  the  Treasury,  who  was  authorized  to  pay  to  the 
claimants  the  sum  awarded  to  them,  "  on  being  satisfied  that  the  same  is  just 
and  equitable,  within  the  provisions  of  the  treaty." 

It  will  be  observed  that  the  facts  of  the  case  bring  it  within  the  principle 
laid  down  in  United  States  v.  Todd,  which  has  just  been  considered,  a  fact 
not  lost  upon  the  Chief  Justice,  who  referred  to  Hayburn's  case  and  the 
opinion  of  the  judges  who  had  allowed  themselves  to  act  under  the  law  of 
Congress  relating  to  pensions.  But  the  court  evidently  considered  the  ques- 
tions involved  of  such  importance  as  to  justify  an  examination  of  the  case 
upon  its  merits  without  regard  to  precedent. 

In  the  first  place  the  Chief  Justice,  on  behalf  of  the  court,  analyzed  the 
acts  which  the  judge  was  obliged  to  perform  under  the  laws  of  Congress,  and, 
after  having  done  so,  indulged  in  comment  as  valuable  today  as  it  was  then. 
Thus: 

'  13  Howard,  40. 


THE  NATURE  OF  JUDICIAL  POWER 


355 


It  is  manifest  that  this  power  to  decide  upon  the  validity  of  these  claims, 
is  not  conferred  on  them  as  a  judicial  function,  to  be  exercised  in  the  ordi- 
nary forms  of  a  court  of  justice.  For  there  is  to  be  no  suit ;  no  parties  in 
the  legal  acceptance  of  the  term,  are  to  be  made  —  no  process  to  issue ;  and 
no  one  is  authorized  to  appear  on  behalf  of  the  United  States,  or  to  summon 
witnesses  in  the  case.  The  proceeding  is  altogether  ex  parte;  and  all  that  the 
judge  is  required  to  do,  is  to  receive  the  claim  when  the  party  presents  it, 
and  to  adjust  it  upon  .?uch  evidence  as  he  may  have  before  him,  or  be  able 
himself  to  obtain.  But  neither  the  evidence  nor  his  award,  are  to  be  filed 
in  the  court  in  which  he  presides,  nor  recorded  there;  but  he  is  required  to 
transmit,  both  the  decision  and  the  evidence  upon  which  he  decided,  to  the 
Secretary  of  the  Treasury;  and  the  claim  is  to  be  paid  if  the  Secretary 
thinks  it  just  and  equitable,  but  not  otherwise.  It  is  to  be  a  debt  from  the 
United  States  upon  the  decision  of  the  Secretary,  but  not  upon  that  of  the 
judge.* 

Upon  these  facts  the  Chief  Justice  thus  commented : 

It  is  too  evident  for  argument  on  the  subject,  that  such  a  tribunal  is  not 
a  judicial  one,  and  that  the  act  of  Congress  did  not  intend  to  make  it  one. 
The  authority  conferred  on  the  respective  judges  was  nothing  more  than 
that  of  a  commissioner  to  adjust  certain  claims  against  the  United  States ; 
and  the  ofiVce  of  judges,  and  their  respective  jurisdictions,  are  referred  to 
in  the  law,  merely  as  a  designation  of  the  persons  to  whom  the  authority  is 
confided,  and  the  territorial  limits  to  which  it  extends.  The  decision  is  not 
the  judgment  of  a  court  of  justice.  It  is  the  award  of  a  commissioner  The 
act  of  1834  calls  it  an  award.  And  an  appeal  to  this  court  from  such  a 
decision,  by  such  an  authority  from  the  judgment  of  a  court  of  record, 
would  be  an  anomaly  in  the  history  of  jurisprudence.  An  appeal  might  as 
well  have  been  taken  from  the  awards  of  the  board  of  commissioners,  under 
the  Mexican  treaty,  which  were  recently  sitting  in  this  city.* 

The  Chief  Justice  v/as,  of  course,  aware  that  the  act  was  judicial,  as 
opposed  to  a  legislative,  executive  or  ministerial  act,  as  its  successful  per- 
formance involved  legal  principles  and  judicial  discretion.  But  he  was  of 
the  opinion  that  it  was  not  an  exercise  of  the  judicial  power  of  the  United 
States,  as  that  term  is  used  in  the  Constitution,  and  as  judicial  power  is  to 
be  exercised  in  courts  organized  in  pursuance  of  the  Constitution.  Indeed, 
he  himself  said: 

The  powers  conferred  by  these  acts  of  Congress  upon  the  judge  as  well 
as  the  Secretary,  are,  it  is  true,  judicial  in  their  nature.  For  judgment  and 
discretion  must  be  exercised  by  both  of  them.  But  it  is  nothing  more  than 
the  power  ordinarily  given  by  law  to  a  commissioner  appointed  to  adjust 
claims  to  lai  is  or  money  under  a  treaty;  or  special  powers  to  inquire  into 
or  to  decide  any  other  particular  class  of  controversies  in  which  the  public 
or  individuals  may  be  concerned.  A  power  of  this  description  may  consti- 
tutionally be  conferred  on  a  Secretary  as  well  as  on  a  commissioner.    But  is 

•  13  Howard,  46-7. 


356  THE  UNITED  STATES:   A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

not  judicial  in  cither  case,  in  the  sense  in  which  judicial  power  is  granted 
by  the  Constitution  to  the  Courts  of  the  United  States' 

The  second  case  to  which  reference  has  been  made  is  that  of  Gordon  v. 
United  States  (2  Wallace,  561).  decided  by  the  Supreme  Court  in  1864. 
Mr.  Chief  Justice  Taney  had  prepared  a  very  careful  opinion  on  the  ques- 
tion of  jurisdiction  involved  in  this  case,  but  he  died  before  the  decision 
was  announced,  and  the  opinion  which  he  had  written  and  communicated 
to  his  brethren  appears  to  have  been  mislaid  by  them;  but  a  copy,  later 
found  among  his  papers,  was,  by  direction  of  the  court,  printed  as  an 
appendix  to  117  U.  S.  Reports.  696-706.'  As  Mr.  Chief  Justice  Taney's 
opinion  is  on  a  subject  with  which  he  was  peculiarly  familiar,  and  inasmuch 
as  it  is  commonly  referred  to  as  the  authority  on  the  subject,  it  seems 
advisable  to  consider  the  case  at  some  length. 

The  plaintiff.  Gordon,  administrator  of  one  Fisher,  presented  a  petition 
in  the  Court  of  Claims  of  the  United  States  for  damages  done  to  Fisher 
by  troops  of  the  United  States  in  the  war  of  1812  with  Great  Britain.  The 
Court  of  Claims  decided  against  the  claim  and  Gordon  appealed  to  the 
Supreme  Court.  The  question  was  similar  to  but  not  identical  with  that 
in  the  Ferreira  case,  as  the  judgment  of  the  court  did  not  determine  the 
case  finally  but  made  the  payment  depend  upon  the  inclusion  of  the  claim 
in  the  Secretary's  estimate  and  upon  the  appropriation  of  the  estimated 
amount  by  the  Congress.  Under  an  act  of  Congress,  an  appeal  could  be 
taken  to  the  Supreme  Court  from  the  Court  of  Qaims,  but  Mr.  Chief 
Justice  Taney  in  his  opinion,  and  the  court  in  its  judgment,  held  that  an 
appeal  would  not  lie  from  the  Court  of  Claims  in  this  instance,  because  that 
court  had  not  exercised  judicial  power  in  the  sense  of  the  Constitution,  and 
its  opinion,  therefore,  was  more  in  the  nature  of  an  award  than  a  judgment 
upon  which  an  appeal  would  lie  to  the  Supreme  Court;  because,  in  either 
event,  the  Court  of  Claims  or  the  Supreme  Court  would  merely  certify  its 
opinion  to  the  executive  officer,  whose  action,  not  the  opinion  of  either 
court,  concluded  the  matter. 

"  "^his  cause  was  submitted  on  the  18th  December.  1863.  On  the  4th  of  April,  1864,  the 
court*  ordered  it  to  be  argued  on  the  second  day  of  the  following  December  Term.  Mr. 
Chief  Justice  Taney  had  prepared  an  opinion  expressing  his  views  upon  the  question  of 
jurisdiction.  This  he  placed  m  the  hands  of  the  clerk  in  vacation,  to  be  delivered  to  the 
judges  on  their  reassembling  in  December.  Before  the  judges  met  he  died.  The  clerk 
complied  with  his  request.  It  is  the  recollection  of  the  surviving  members  of  the  court, 
that  this  paper  was  carefully  considered  by  the  members  of  the  court  in  reaching  the  con- 
clusion reported  in  2  Wall  561 :  and  that  it  was  proposed  to  make  it  the  basis  of  the  opinion, 
which,  it  appears  by  the  report  of  the  case,  was  to  be  subsequently  prepared.  The  paper 
was  not  restored  to  the  custody  of  the  clerk,  nor  was  the  proposed  opinion  ever  prepared. 
At  the  suggestion  of  the  surviving  memoers  of  the  court,  the  reporter  made  efforts  to  fiiia 
the  missing  paper,  .ind,  having  succeeded  in  doing  so,  now  prints  it  with  their  assent.  (117 
U.  S.,  Appendix.  697.) 


THE   NATURE  OF   JUDICIAL  POWER 


357 


In  speaking  of  the  nature  and  functioas  of  the  Supreme  Court  and  the 
action  it  should  take  in  the  present  case,  Mr.  Chief  Justice  Taney  said : 

But  whether  this  Court  can  be  required  or  authorized  to  hear  an  appeal 
from  such  a  tribunal,  and  give  an  opinion  upon  it  without  the  power  of 
pronouncing  a  judgment,  and  issuing  the  appropripte  judicial  process  to 
carry  it  into  effect,  is  a  very  ditTcrent  question,  and  rcits  on  principles  alto- 
gether different.  The  Supreme  Court  does  not  owe  its  existence  or  its 
powers  to  the  Legislative  Department  of  the  Government.  It  is  created  by 
the  Constitution,  and  represents  one  of  the  three  great  divisions  of  power 
in  the  Government  of  the  United  Stales,  to  each  of  which  the  Constitution 
has  assigned  its  appropriate  duties  and  powers,  and  made  each  independent 
of  the  other  in  performing  its  appropriate  functions.  The  power  conferred 
on  this  court  is  exclusively  judicial,  and  it  cannot  be  required  or  authorized 
to  exercise  any  oiher.' 

After  quoting  the  first  section  of  Article  III  of  the  Constitution,  vesting  fSl^^oo 
the  judicial  power  of  the  United  States  in  the  Supreme  Court,  and  the  last 
clause  of  the  same  Article,  providing  that  "  The  Supreme  Court  shall  have 
app«''late  jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  Congress  shall  make,"  the  Chief  Justice  thus 
continued,  in  language  peculiarly  appropriate  to  the  purposes  of  the  pres'.nt 
essay: 

The  existence  of  this  Court  is,  therefore,  as  essential  to  the  organization 
of  the  government  established  by  the  Constitution  as  the  election  of  a  presi- 
dent or  members  of  Congress.  It  is  the  tribunal  which  is  ultimately  to 
decide  all  judicial  questions  confided  to  the  Government  of  the  United 
States.  No  appeal  is  given  from  its  decisions,  nor  any  power  given  to  the 
legislative  or  executive  departments  to  interfere  with  its  judgments  or 
proces.s  of  execution.  Its  jurisdiction  and  powers  and  duties  being  defined 
in  the  organic  law  of  the  government,  and  being  all  strictly  judicial.  Con- 
gress cannot  require  or  authorize  the  court  to  exercise  any  other  jurisdic- 
tion or  power,  or  perform  any  other  duty.  Chancellor  Kent  says :  "  The 
judicial  power  of  the  United  States  is  in  point  of  origin  and  title  equal 
with  the  other  powers  of  the  government,  and  is  as  exclusively  vested  in  the 
court  created  by  or  pursuant  to  the  Constitution,  as  the  legislative  power 
is  vested  in  Congress,  or  the  Executive  power  in  the  President."  I  Kent. 
Com.,  209-291.  6th  ed.    See  also  Story  Const.,  pp.  449-450.= 

After  stating  the  elevated  and  indeed  the  unique  position  which  the  judi- 
cial power  occupies  in  the  American  system  of  government,  the  Chief  Jus- 
tice proceeded  to  discuss  the  reason  for  the  creation  of  this  power.     Thus: 

The  reason  for  giving  such  unusual  power  to  a  judicial  tribunal  is 
obvious.  It  was  necessary  to  give  it  from  the  complex  character  of  the 
Government  of  the  United  States,  which  is  in  part  National  and  in  part 


"  117  U.  S..  Appendix,  699^700. 
*lbid.,  V.  700. 


358 


THE   UNITED  STATES:   A  STUDY  IN   INTEKNATIONAL  OSCANIZATION 


rt.;, 


Federal:  where  two  separate  Governments  exercise  certain  powers  of 
sovereignty  over  the  same  territory,  each  independent  of  the  other  within 
its  appropriate  sphere  of  action,  and  where  there  was,  therefore,  an  abso- 
lute necessity,  in  order  to  preserve  internal  tranquility,  that  there  should 
be  some  tribunal  to  decide  between  the  Government  of  the  United  States 
and  the  government  of  a  State  whenever  any  controversy  should  arise  as 
to  their  relative  and  respective  powers  in  the  common  territory.  The 
Supreme  Court  was  created  for  that  purpose,  and  to  insure  its  impartiality 
it  was  absolutely  necessary  to  make  it  independent  of  the  legislative  power, 
and  the  influence  direct  or  indirect  of  Congress  and  the  Executive.  Hence 
the  care  with  which  its  jurisdiction,  powers,  and  duties  are  defined  in  the 
Constitution,  and  its  independence  of  the  legislative  branch  of  the  govern- 
ment secured.* 


1 1 


Orifinal 

Junsdiction 


The  Chief  Justice  supports  his  contention  by  a  passage  from  the  39th 
number  of  The  Federalist  written  by  James  Madison,  in  which  he  says  that 
the  decision  is  to  be  made  impartially  and  that  every  precaution  is  to  be 
taken  in  order  to  secure  this  impartiality,  because,  to  quote  his  exact  lan- 
guage, "some  such  tribunal  (as  the  Supreme  Court)  is  clearly  essential  to 
prevent  an  appeal  to  the  sword,  and  a  dissolution  of  the  compact." '  Upon 
this  statement,  taking  the  passage  quoted  from  Mr.  Madison  as  a  point  of 
departure,  the  Chief  Justice  thus  continues: 

It  was  to  prevent  an  appeal  to  the  sword  and  a  dissolution  of  the  com- 
pact that  this  Court,  by  the  organic  law,  was  made  equal  in  origin  and 
equal  in  title  to  the  legislative  and  executive  branches  of  the  government: 
its  powers  defined,  and  limited,  and  made  strictly  judicial,  and  placed  there- 
fore beyond  the  reach  of  the  powers  delegated  to  the  Legislative  and 
Executive  Departments.  And  it  is  upon  the  principle  of  the  perfect  inde- 
pendence of  this  Court,  that  in  cases  where  the  Constitution  gives  it 
original  jurisdiction,  the  action  of  Congress  has  not  been  deemed  necessary 
to  regulate  its  exercise,  or  to  prescribe  the  process  to  be  used  to  bring  the 
parties  before  the  Court,  or  to  carry  its  judgment  into  execution.  The 
jurisdiction  and  judicial  power  being  vested  in  the  court,  it  proceeded  to 
prescribe  its  process  and  regulate  its  proceedings  according  to  its  own  judg- 
ment, and  Congress  has  never  attempted  to  control  or  interfere  with  the 
action  of  the  court  in  this  respect.' 

It  will  be  observed  that,  in  this  passage,  the  Chief  Justice  refers  to  the 
original  jurisdiction  of  the  court,  and  that  his  remarks  are  strictly  limited 
to  this  portion  of  its  jurisdiction;  for,  while  it  is  true  that,  in  the  exercise 
of  its  original  jurisdiction,  the  Supreme  Court  does  not  compel  a  State  to 
appear  before  it  nor,  hitherto  at  least,  by  force  compel  the  execution  of  a 
judgment  against  a  State,  the  Supreme  Court  can  and  does,  in  the  exercise 
of  appellate  jurisdiction,  compel  the  presence  of  individuals  before  it  and 

■  117  U.  S.,  Appendix,  pp.  700-1. 
•  The  Federalist.  1802,  Vol.  i,  p.  259. 
■117  U.  S.,  Appendix,  70\-2. 


THE  NATUU  OF  JUDICIAL  POWEIt 


359 


does  likewise  compel  the  execution  of  its  judgment  against  individuals  by  Jjj^  nur 
the  amount  of  force  required  to  secure  obedience  to  its  mandates.     After  fn^Jfiwu 
saying  that  an  inferior  court,  in  which  the  judicial  power  is  vested  but  from  stiteT'to 
which  an  appeal  lies  to  the  Supreme  Court,  can  only  be  a  judicial  tribunal  '"^" 
authorized  to  render  a  judgment,   finally  deciding  the  rights  of  parties 
litigant  unless  appealed  from,  and  upon  which  execution  may  be  issued  to 
carry  the  judgment  into  effect,  the  Chief  Justice  goes  on  to  say  that  "  Con- 
gress cannot  extend  the  appellate  power  of  this  Court  beyond  the  limits  pre- 
scribed by  the  Constitution,  and  can  neither  confer  nor  impose  on  it  the 
authority  or  duty  of  hearing  and  determining  an  appeal  from  a  Commis- 
sioner or  Auditor,  or  any  other  tribunal  exercising  only  special  powers 
under  an  act  of  Congress;  nor  can  Congress  authorize  or  require  this  Court 
to  express  an  opinion  on  a  case  where  its  judicial  power  could  not  be  exer- 
cised, and  where  its  judgment  would  not  be  final  and  conclusive  upon  the 
rights  of  the  parties,  and  process  of  execution  awarded  to  carry  it  into 
effect." 

The  Chief  Justice  finally  insists  that  it  is  not  only  inherent  in  judicial 
power  to  decide  a  question  finally,  but  also  that  execution  shall  issue  to  carry 
the  judgment  into  effect,  and  that,  if  the  holding  of  the  court  be  not  final 
in  first  instance,  or  upon  appeal,  and  if  it  can  not  be  executed,  it  is  not  an 
exercise  of  the  judicial  power  in  the  sense  of  the  Constitution.  Thus,  he 
says: 

The  award  of  execution  is  a  part,  and  an  essential  part  of  every  judg- 
ment passed  by  a  court  exercising  judicial  power.  It  is  no  judgmenf.  in 
the  legal  sense  of  the  term,  without  it.  Without  such  an  award  the  judg- 
ment would  be  inoperative  and  nugatory,  leaving  the  aggrieved  party 
without  a  remedy.  It  would  be  merely  an  opinion,  which  wouU  remain  a 
dead  letter,  and  without  any  operation  upon  the  rights  of  the  parties, 
unless  Congress  should  at  some  future  time  sanction  it,  and  pass  a  law 
authorizing  the  court  to  carry  its  opinion  into  eflfect.  Such  is  not  the  judi- 
cial power  confided  to  this  Court,  in  the  exercise  of  its  appellate  jurisdic- 
tion :  yet  it  is  the  whole  power  that  the  Court  is  allowed  to  exercise  under 
this  act  of  Congress.' 


In  the  concluding  passage  of  this  opinion,  which  can  not  be  too  often 
recommended  and  read,  the  Chief  Justice  calls  attention  to  the  fact  that  an 
attempt  on  the  part  of  the  Congress  or  of  the  government  to  invest  the 
courts  of  the  United  States  with  the  exercise  of  power  not  properly  included 
in  the  grant  of  judicial  power,  would  be  an  attempt  on  the  part  of  the  Gov- 
ernment to  infringe  upon  the  sovereignty  of  the  States  creating  the  Union, 
which  reserved  to  themselves  and  their  people  the  powers  not  directly  or 
indirectly  delegated  to  the  United  States.    Thus,  Mr.  Chief  Justice  Taney 


rreiftnty 


•  117  U.  S.,  Appendix,  702. 


360 


THE   UNITED  STATE! :  A  STtTDY   IN   INTERNATIONAL  OEGANtZATtON 


Scfxrati    I 
of  Powtit 


Finality  of 

.he   CoMIt'i 

DecTtt 


said  in  the  last  opinion  which  he  was  destined  to  write  as  Giief  Justice  of 
the  Court  over  which  he  presided: 

The  Constitution  of  the  United  States  delegates  no  judicial  power  to 
Congress.  Its  powers  are  confined  to  legislative  duties,  and  restricted 
within  certain  prescribed  limits,  liy  the  second  section  of  Article  VI.,  the 
laws  of  Congress  are  made  the  supreme  law  of  the  land  only  when  they 
are  made  in  pursuance  of  the  legislative  power  specitied  in  the  Constitution ; 
and  by  the  Xth  amendment  the  powers  not  delegated  to  the  United  States 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively 
or  to  the  people.  The  reservation  to  the  States  respectively  can  only  mean 
the  reservation  of  the  rights  of  sovereignty  which  they  respectively  pos- 
sessed before  the  adoption  of  the  Constitution  of  the  United  States,  and 
which  they  had  not  parted  from  by  that  instrument.  And  any  legislation 
by  Congress  beyond  the  limits  of  the  power  delegated,  would  be  trespassing 
upon  the  rights  of  the  States  or  the  people,  and  would  not  be  the  supreme 
law  of  the  land,  but  null  and  void ;  and  it  would  be  the  duty  of  the  courts 
to  declare  it  so.  For  whether  an  act  of  Congress  is  within  the  limits  of 
its  delegated  power  or  not  is  a  judicial  question,  to  be  decided  by  the  courts, 
the  Constitution  having,  in  express  terms,  declared  that  the  judicial  power 
shall  extend  to  all  cases  arising  under  the  Constitution.' 

After  referring  to  the  separation  in  England  of  the  judicial  power  from 
the  legislative  and  executive,  he  thus  concludes : 

These  cardinal  principles  of  free  government  had  not  only  been  long 
established  in  England,  but  also  in  the  United  States  from  the  time  of  their 
earliest  colonization,  and  guided  the  American  people  in  framing  and 
adopting  the  present  Constitution.  And  it  is  the  duty  of  this  Court  to 
maintain  it  unimpaired  as  far  as  it  may  have  the  power.  And  while  it 
executes  firmly  all  the  judicial  powers  entrusted  to  it,  the  Court  will  care- 
fully abstain  from  exercising  any  power  that  is  not  strictly  judicial  in  its 
character,  and  which  is  not  clearly  confided  to  it  by  the  Constitution.' 

In  /»  re  Sanborn  (148  U.  S.,  222,  226),  decided  in  1893.  the  Supreme 
Court  had  occa.sion  to  recur  to  its  holding  in  the  Gordon  case,  and  in  so 
doing  it  referred  with  approval  to  Mr.  Chief  Justice  Taney's  opinion 
written  for  the  court  in  that  rase.  It  is  therefore  unnecessary  to  state  the 
facts  in  In  re  Sanborn,  but  a  passage  from  the  unanimous  opinion  of  the 
Court  is  quoted  as  showing  that  that  tribunal,  upon  reconsideration  and 
argument,  insisti  1  upon  the  finality  of  decision  as  essential  to  judicial 
power.     Thus,  Mr.  Justice  Shiras,  in  speaking  for  the  court,  said: 

Such  a  finding  is  not  made  obligatory  on  the  department  to  which  it 
is  reported— certainly  not  so  in  terms, — and  not  so,  as  we  think,  by  any 
necessarj'  implication.    We  regard  the  function  of  th^  Court  of  Claims,  in 


■  117  U.  S.,  Appendix,  70S. 
'  Ibid..  706. 


TH«  NATTJM  OF  JlHilCIAL  POWE« 


361 


luch  a  caie.  at  ancillary  and  advisory  only.  The  finding  or  conclusion 
reached  by  that  court  is  not  enforceable  by  any  process  of  execution  issu- 
ing from  the  court,  nor  is  it  made,  by  the  statute,  the  final  and  indisputable 
basis  of  action  either  by  the  department  or  by  congress. 

In  the  leading  case  of  Marhury  v.  Madison  (\  Cranch,  137.  177), 
decided  in  1803.  which  will  later  be  considered  at  length.  Mr.  Chief  Justice 
Marshall  said:  "It  is  emphatically  the  pro%ince  and  duty  of  the  judicial 
department  to  say  what  the  law  is;"  and  to  decide  tlie  conflict  Iwtween 
competing  rules  of  law  is  "of  the  very  essence  of  judicial  duty."  Some 
striking  examples  of  the  nature  of  judicial  power  have  already  lieen  stated 
in  the  English  cases  on  this  subject,  and.  incidentally,  in  pas-iages  quoted 
from  decisions  of  the  Supreme  Court.  As.  however,  the  success  of  the 
great  experiment— fo.-  the  Supreme  Court,  without  an  exact  model,  was  an 
experiment— was  due  to  the  fact  that,  in  the  exercise  of  judicial  power,  it 
has  kept  not  merely  departments  of  the  General  Governmert  within  the  meed 
of  power  granted  them  by  the  Constitution,  but  also  keeps  the  States  of  the 
Union  themselves  within  their  orbits,  it  is  advisable  in  this  connection  to  state 
the  reason  for  and  to  show  the  process  by  which  the  Supreme  Court  of  the 
United  States,  through  the  exercise  of  judicial  power,  necessarily  restrains 
the  acts  of  the  departments  of  the  General  Government  and  of  the  States 
within  thoie  limits  which  the  States  themselves  prescrit)ed  in  the  Consti- 
tution. .,       ,  ■      u- 

There  are  two  passages  from  the  Constitution  to  be  considered  in  this 
connection.    The  first,  to  be  dealt  with  later,  extends  the  judicial  power  to 
"all  Cases,  in  Law  and  Equity,  arising  under  this  Constitution,  the  Laws  of 
the  United  States,  and  Treaties  made,  or  which  shall  be  made,  under  their 
Authority."  *    The  second  declares  "  this  Constitution  and  the  Laws  of  the 
United  States."  made  as  in  the  first  passage.  "  the  supreme  Law  of  the 
Land;  and  the  Judges  in  every  State  shall  be  bound  thereby,  any  Thing  in 
the  Constitution  or  Laws  of  any  State  to  the  Contrary  notwithstanding." ' 
It  will  be  observed  that,  while  the  Constitution  is  the  supreme  law  of  the 
land,  the  laws  of  the  United  States  are  only  to  be  considered  supreme  and 
binding  if  they  are  made  in  pursuance  of  the  Constitution,  for  it  might  be 
attempted  to  pass  laws  which  were  not  in  pursuance  of  that  instrument.     In 
this  latter  case  they  are  void,  because  the  grant  is  to  make  laws  in  accord- 
ance with,  not  inconsistent  with,  the  Constitution.     The  intention  of  the 
framers  to  have  the  judicial  power  pass  upon  and  determine  these  questions 
is  evident  in  extending  it  to  the  Constitution,  to  the  laws  of  the  United 
States,  and  to  the  treaties,  which  are  likewise  laws,  made  under  the  authority 
of  the  United  States,  and  by  requiring  judges  in  every  State  to  be  bound 

'  Art   in,  Section  2.  of  the  Constitution. 
•  Art.  VI  of  the  Constitution. 


362 


TUB  UNITBO  fTATU:  A  aTUDY  IN   INTERNATIONAL  ORGANIZATION 


by  the  Constitution,  lawi  of  the  United  States  made  in  pursuance  of  the 
Constitution  and  the  treaties  of  the  United  States. 

Experience  shows  that  men  can  not  safely  tie  entrusted  with  interpreting, 
applying  ant^  executing  the  laws  which  they  themselves  have  made,  and  no 
man  can  in  reason  be  allowed  to  be  suitor,  judge  and  sheriff  in  his  own  case. 
There  is  indeed  a  pre.sumption  that  the  legislature,  owing  its  existence  to 
the  Constitution,  will  restrain  its  acts  within  the  grant  of  power,  and  there 
may  also  be  a  presumption  that  the  executive  will  not  knowingly  exceed  the 
grant  of  power.  But  if  the  legislative  or  executive  department  should  deter- 
mine this  question  for  itself,  there  is  reason  to  believe,  and  indeed  to  fear, 
that  self-interest  might  enter  into  the  determination.  The  case  with  the 
judiciary  is  different.  The  court  does  not  make  the  law  which  it  interprets 
anil  applies.  The  judge  is  not  a  party  to  the  case.  If  he  has  any  interest 
in  it,  he  can  be  challenged  and  disqualified.  And  he  does  not  himself 
execute  the  decision  which  he  has  rendered,  as  this  is  the  duty  of  the  execu- 
tive branch  of  the  government. 

But  the  framers  of  the  Constitution  did  not  need  to  rely  upon  unaided 
reason,  or  even  to  be  guided  by  the  dangers  suggested  by  experience.  As 
colonists  they  had  oeen  kept  by  the  King  in  Council,  acting  directly  or  indi- 
rectly through  a  committee,  within  the  sphere  of  the  grant  of  power  con- 
tained in  the  colonial  charters,  and  they  were  familiar  with  English  cases 
declaring  null  and  void  by-laws  of  a  corporation  in  excess  of  the  grant.  We 
would  therefore  expect  that  they  would  have  invested  the  judiciary  with 
this  power,  and  although  there  is  no  express  grant  of  this  function  or  attri- 
bute of  power  in  the  Constitution  other  than  the  words  which  have  been 
quoted,  it  is  a  fact  that  the  framers  of  the  Constitution  stated  in  the  debates, 
as  reported  by  Mr.  Madison,  that  the  Supreme  Court  would  exercise  this 
power,  and  it  is  also  a  fact  that  statements  of  a  like  kind  were  made  in  the 
Fcilcralist,  whi(..i  was  written  by  Messrs.  Hamilton,  Madison  and  Jay  for 
the  purpose  of  securing  the  ratification  of  the  Constitution  of  the  United 
States  and  which  is  toilay  regarded  as  the  classical  and  contemporaneous 
exposition  of  tl  e  Constitution.  It  is  further  a  fact  that  members  of  the 
State  convention  ,  called  for  the  express  purpose  of  ratifying  the  Consti- 
tution, declared  hat  the  Supreme  Court  possessed  such  power  under  the 
constitutional  grant.  .And  it  is,  finally,  a  fact  that  the  Chief  Justice  who 
first  passed  upon  this  question,  and  who  rendered  the  classical  decision  in 
favor  of  the  judicial  power,  expressly  so  said  in  the  Virginia  convention. 

A  well  informed  and  acciimte  writer  states  that,  among  the  fifty-five 
members  of  the  Constitutional  Convention,  there  were  "  twenty-five  whose 
character,  ability,  diligence  and  regularity  of  attendance,  separately  or  in 
combination,  made  them  the  dominant  element  in  the  Convention;"  and 


THt    NATURE  OF   JUOICIAt   POWEK 


.%3 


that,  of  these  twenty-five,  "  seventeen  .  .  .  declared,  directly  or  indirectly, 
for  judicial  .ntrol,"  '  To  these  arc  also  to  l)c  added  two  members  not 
included  among  the  twenty-five,  who  expressed  themselves  in  favor  of  judi- 
cial control  by  deed  rather  than  by  word  of  mouth;  because  David  Brearly, 
a  delcRate  fiom  New  Jersey  and  Chief  Justice  of  its  Supreme  Court,  hiid, 
it  is  l)clieved,  supplied  an  early  if  not  the  first  instance  in  American  annaU 
of  the  judicial  iM)wer  declaring  an  act  of  the  IcRislature  unconstitutional, 
as  inconsistent  with  the  fund.iniental  law  of  the  land,  in  the  case  of  HoUiics 
V.  Walton,  decided  in  1780.  George  Wythe,  a  delegate  from  Virginia  and 
justice  of  the  Court  of  Appeals  of  his  State,  appears  to  have  said,  two 
years  later  (1782),  in  the  case  of  Commotvwealth  v.  Caton  (4  Call,  5),  that 
an  act  of  the  legislature  of  Virginia  was  unconstitutional  for  a  like  reason. 
Elbridge  Gerry,  a  delegate  from  Massachusetts,  expressed  himself  strongly 
on  this  point  on  two  occasions.  In  the  matter  of  making  judges  memljers 
of  the  propf)sed  council  of  revision,  he  doubted  whether  the  judiciary  ought 
to  form  a  part  of  it  "  as  they  will  have  a  sufficient  check  ag".  encroachments 
on  their  own  department  by  their  exposition  of  the  laws,  which  involved  a 
power  of  deciding  on  their  Constitutionality.  Ir  some  States  the  Judges 
had  actually  set  aside  laws  as  being  ag".  the  Constitution.  This  was  done 
too  with  general  approbation.  It  was  quite  foreign  from  the  nature  of  y' 
office  to  make  them  judges  of  the  policy  of  public  measures."  '  On  a  second 
occasion  he  said: 

If  the  power  of  making  declaratory  acts  really  vests  in  Congress  and 
the  judges  are  bound  by  our  decisions,  \vc  ni.iy  alter  that  part  of  the  Con- 
stitution which  is  secured  from  being  amended  by  the  5th  article;  .  .  . 
The  nHTchan:  does  not  construe  the  Constitution  in  the  manner  that  we 
have  (lone.  He  therefore  institutes  a  suit  and  brings  it  before  t'-e  supreme 
judicature  of  the  United  States  for  trial.  1  he  judges,  who  are  bouml  by 
oath  to  support  the  Constitution,  declare  against  this  law ;  they  would  there- 
fore give  judgment  in  favor  of  the  merchant.* 

This  latter  statement  of  Mr.  Gerry  is  especially  noteworthy,  as  it  recognized 
the  power  and  method  in  which  it  is  exercised  at  the  suit  of  an  individual 
who  feels  himself  aggrieved  in  his  property  or  in  his  person. 

We  would  expect  to  have  .Mexander  Hamilton  state  his  views  on  this 
very  important  and,  in  the  language  of  the  day,  interesting  question,  and 
we  are  not  disappointed.  In  the  "8th  number  of  The  Federalist,  written  to 
advocate  the  r  vision  of  the  Constitution,  Colonel  Hamilton  said: 

There  is  no  position  which  depends  on  clearer  principles,  than  that 
every  act  of  a  delegated  authority,  contrary  to  the  tenor  of  the  commission 

'  Charles  A.  Beard.  The  Supreme  Court  and  the  Constitution,  1912,  pp.  17-18. 
'  Documentary  History,  Vol.  iii,  pp.  54-S.    Session  of  June  4th. 
'  Elliot,  Debates,  Vul.  iv,  p.  393. 


'i 


I 


t    .' 


364  THE  UNITED  STATES^  A  STUDY  IN   INTEKNATIONAL  ORGANIZATION 

under  which  it  is  exercised,  is  void.  No  legislative  act,  therefore,  contrary 
to  the  constitution,  can  be  valid.  To  deny  this,  would  be  to  affirm,  'hat 
the  deputy  is  greater  than  his  principal;  that  the  servant  is  above  his 
master;  that  the  representatives  of  the  people  are  superior  to  the  people 
themselves;  that  men,  acting  by  virtue  of  powers,  may  do  not  only  what 
their  powers  do  not  authorize,  but  what  they  forbid.* 

And  in  a  later  passage  from  the  same  number,  he  says : 

The  interpretation  of  the  laws  is  the  proper  and  peculiar  province  of 
the  courts.  A  constitution  is,  in  fact,  and  must  be,  regarded  by  the  judges 
as  a  fundamental  law.  It  must  therefore  belong  to  them  to  ascertain  its 
meaning,  as  well  as  the  meaning  of  any  particular  act  proceeding  from  the 
legislative  body.  If  there  should  happen  to  be  an  irreconcilable  variance 
between  the  two,  that  which  has  the  superior  obligation  and  validity  ought, 
of  course,  to  be  preferred;  in  other  words,  the  constitution  ought  to  be 
preferred  to  the  statute,  the  intention  of  the  people  to  the  intention  of 
their  agents.' 

In  addition  to  these  authoritative  pronouncements,  we  have  the  expres- 
sions of  opinion  of  two  men  made  in  the  convention  of  their  States,  both 
destined  to  be  Chief  Justices  of  the  Supreme  Court  of  the  United  States. 
Thus,  Oliver  Ellsworth,  who  had  been  a  member  of  the  Philadelphia  Con- 
vention, said: 

This  Constitution  defines  the  extent  of  the  powers  of  the  general  gov- 
ernment. If  the  general  legislature  should  at  any  time  overleap  their 
limits,  the  judicial  department  is  a  constitutional  check.  If  the  United 
States  go  bevond  their  powers,  if  they  make  a  law  which  the  Constitution 
does  not  auihorize.  it  is  void;  and  the  judicial  power,  the  national  judges, 
who.  to  secure  their  impartiality,  are  to  be  made  independent,  will  declare 
it  to  be  void.' 

The  other.  John  Marshall,  a  member  of  the  Virginian,  though  not  of  the 
Constitutional,  Convention,  h'lt  destined  to  be  the  great  expounder  of  the 
Constitution  from  the  bench,  said  in  the  course  of  the  debates  in  his  State 
Convention : 

Mas  the  government  of  the  United  States  power  to  make  laws  on  every 
subject?  .  .  .  Can  they  make  laws  atTecting  the  mode  of  transferring 
property,  or  contracts,  or  claims,  between  citizens  of  the  same  state?  Can 
they  Ro  beyond  the  delegated  powers?  If  they  were  to  make  a  law  not 
warranted  Iv  any  of  the  powers  enumerated,  it  would  be  considered  W 
the  judges  as  an  infringement  of  the  Constitution  which  they  are  to  guard. 
They  would  not  consider  such  a  law  as  coming  under  their  jurisdiction. 
They   would  declare  it  void.* 

•  The  Federalist.  1802.  Vol.  ii,  p.  212. 

•  IIh,I..  Vol.  ii,  pp.  212-13. 

•  Elliot,  Debates.  Vol.  ii,  p.  196. 

•  Ibid.,  Vol.  iii,  p.  553. 


THE   NATURE  OF  JUDICIAL  POWER 


365 


I 


i 


These  expressions  of  opinion  before  the  Constitution  went  into  effect. 
are  of  importance  in  that  they  foreshadow  the  actions  of  courts  established 
under  the  Constitution  in  the  interpretation  and  apphcation  of  judicial 
power  to  cases  brought  before  them  involving  the  Constitution,  laws  of  the 
United  States  made  in  pursuance  thereof,  and  treaties  concluded  by  the 
United  States  with  foreign  countries.  It  will  be  recalled  that,  in  a  letter 
addressed  to  the  President  under  date  of  April  18,  1792,  by  Messrs.  Wilson 
and  Blair,  Justices,  and  Judge  Peters  of  the  District  Court  of  Pennsylvania, 
they  referred  to  "  the  sentiments,  which,  on  a  late  painful  occasion,  gov- 
erned us,  with  regard  to  an  act  passed  by  the  legislature  of  the  union."  '■ 

This  is  conjectured  and  may  be  taken  as  .  '^►ablished  by  Professor  Farrand 
in  an  interesting  note  on  the  first  Hayburn  case  to  be  the  application  of  one 
William  Hayburn  to  the  Circuit  Court  of  Pennsylvania  for  a  pension  under 
the  act  of  Congress  of  1792,  and  the  decision  of  the  court,  just  one  week 
before  the  date  of  the  letter,  that  such  act  was  unconstitutional  and  that  the 
judges  could  not  therefore  entertain  and  grant  the  application.  The  fol- 
lowing further  passage  from  the  letter  is  thought  by  Professor  Farrand  to 
refer  to  this  action  of  the  Circuit  Court: 

Upon  due  consideration,  we  have  been  unanimously  of  opinion,  that, 
under  this  act,  the  circuit  court,  held  for  the  Pennsylvania  district,  could 
not  proceed;  ...  Be  assured,  that,  though  it  became  necessary,  it  was 
far  from  being  pleasant.  To  be  obliged  to  act  contrary  either  to  the 
obvious  directions  of  congress,  or  to  a  constitutional  principle,  in  our  judg- 
ment, equally  obvious,  excited  feelings  in  us,  which  we  hope  never  to 
experience  again.* 

The  reader  will  now  be  prepared  to  appreciate  the  brief  record  copied  from 
the  docket  of  the  Circuit  Court,  a  discovery  made  known  by  Professor 
Farrand : 

At  a  Circuit  Court  of  the  United  States  in  and  for  the  Pennsylvania 
District,  etc. 

11th  day  of  April,  1792,  before  Wilson,  Blair  and  Peters. 

The  petition  of  William  Hayburn.  was  read  and  after  due  deliberation 
thereupon  had  it  is  considered  by  the  Court  that  the  same  be  not  proceeded 
upon.' 

Three  years  later,  in  1795,  the  Circuit  Court  of  the  United  States  for 
the  District  of  Pennsylvania,  declared  an  act  of  that  State  to  be  null  and 
void,  as  repugnant  to  the  constitution  of  Pennsylvania,  in  Van  Home's 

•  M*ax''Farrand,  The  First  Hayburn  Case,  1792,  American  Historical  Review,  Vol.  xiii, 
p.  283.     (January,  1908.) 
•ibid. 


366 


THE   UNITED  STATES:  A  STUDY  IN    INTERNATIONAL  ORGANIZATION 


•l^-iti 


Lessee  v.  Dorrance  (2  Dallas,  304,  308,  309).  More  fortunate  than  Messrs. 
Wilson  and  Blair  in  the  Hayburn  case,  the  opinion,  or  rather  the  charge,  of 
Mr.  Justice  Patterson  has  been  preserved,  in  accordance  with  which  the  jury 
rendered  its  verdict  and  the  court  its  judgment. 

In  the  course  of  his  charge,  Mr.  Justice  Patterson  had  occasion  to  refer 
to  the  origin  and  nature  of  a  constitution  and  the  relation  to  it  of  laws 
passed  by  a  legislature  under  a  constitutional  grant  of  power,  and  his  lan- 
guage is  applicable  to  the  constitution  of  any  state  where  the  American 
system  prevails.    Thus,  he  said: 

The  Constitution  is  the  work  or  will  of  the  People  themselves,  in  their 
original,  sovereign,  and  unlimited  capacity.  Law  is  the  work  or  will  of 
the  Legislature  in  their  derivative  and  subordinate  capacity.  The  one  is 
the  work  of  the  Creator,  and  the  other  of  the  Creature.  The  Constitution 
fixes  limits  to  the  exercise  of  legislative  authority,  and  prescribes  the 
orbit  within  which  it  must  move.  In  short,  gentlemen,  the  Constitution  is 
the  sun  of  the  political  system,  around  which  all  Legislative,  Executive  and 
Judicial  bodies  must  revolve.  Whatever  may  be  the  case  in  other  coun- 
tries, yet  in  this  there  can  be  no  doubt,  that  every  act  of  the  Legislature, 
repugnant  to  the  Constitution,  is  absolutely  void.   .    .    . 

The  Constitution  of  a  State  is  stable  and  permanent,  not  to  be  worked 
upon  by  the  temper  of  the  times,  nor  to  rise  and  fall  with  the  tide  of 
events :  notwithstanding  the  competition  of  opposing  interests,  and  the 
violence  of  contending  parties,  it  remains  firm  and  immoveable,  as  a  moun- 
tain amidst  the  strife  of  storms,  or  a  rock  in  the  ocean  amidst  the  raging 
of  the  waves.  I  take  it  to  be  a  clear  position;  that  if  a  legislative  act 
oppugns  a  constitutional  principle,  the  former  must  give  way,  and  be 
rejected  on  the  score  of  repugnance.  I  hold  it  to  be  a  position  equally  clear 
and  sound,  that,  in  such  case,  it  will  be  the  duty  of  the  Court  to  adhere  to 
the  Constitution,  and  to  declare  the  act  null  and  void.  The  Constitution 
is  the  basis  of  legislative  authority;  it  lies  at  the  foundation  of  all  law,  and 
is  a  rule  and  commission  by  which  both  Legislators  and  Judges  are  to 
proceed  It  is  an  important  principle,  which,  in  the  discussion  of  questions 
of  the  present  kind,  ought  never  to  be  lost  sight  of.  that  the  Judiciary  in 
this  country  is  not  a  subordinate,  but  co-ordinate,  branch  of  the  government.' 


Fifteen  years  later,  that  is  to  say,  in  1803,  after  having  his  experience 
at  the  bar  broadened  by  service  in  Congress,  as  Minister  to  France,  as  Sec- 
retary of  War  and  as  Secretary  of  State,  John  Marshall  was  called  upon, 
as  Chief  Justice  of  the  Supreme  Court,  to  decide  the  very  question  in  fact 
which  he  had  decided  in  theory  in  the  Constitutional  Convention  of  his 
State.  In  holding  that  the  original  jurisdiction  of  the  Supreme  Court  as 
stated  in  the  Constitution  could  neither  be  enlarged  nor  lessened  by  the 
Congress,  he  declared  on  behalf  of  the  court,  in  the  case  of  Marbury  v. 
Madison  (1  Cranch,  137),  an  act  of  Congress  unconstitutional  and  as  null 

'2  Dallas.  308-9. 


THE   NATURE  OF  JUBICIAL   POWER 


367 


and  void,  which  attempted  to  enlarge  its  original  jurisdiction.    In  the  course 
of  his  opinion  he  said : 


Tlie  question,  whether  an  act,  repugnant  to  the  constitution,  can  become 
the  law  of  the  land,  is  a  question  deeply  interesting  to  the  United  States; 
but,  happily,  not  of  an  intricacy  proportioned  to  its  interest.  It  seems  only 
necessary  to  recognise  certain  principles,  supposed  to  have  been  long  and 
well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their  future  gov- 
ernment, such  principles  as,  in  their  opinion,  shall  most  conduce  to  their 
own  happiness  is  the  basis  on  which  the  whole  American  fabric  has  been 
erected.  The  exercise  of  this  original  right  is  a  very  great  exertion;  nor 
can  it,  nor  ought  it,  to  be  frequently  repeated.  The  principles,  therefore, 
so  established,  are  deemed  fundamental.  And  as  the  authority  from  which 
they  proceed  is  supreme,  and  can  seldom  act,  they  are  designed  to  be 
permanent. 

This  original  and  supreme  will  organizes  the  government,  and  assigns 
to  different  departments  their  respective  powers.  It  may  either  stop  here, 
or  establish  certain  limits  not  to  be  transcended  by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  description.  The 
powers  of  the  legislature  are  defined  and  limited ;  and  that  these  limits  may 
not  be  mistaken,  or  forgotten,  the  constitution  is  written.  To  what  purpose 
are  powers  limited,  and  to  what  purpose  is  that  limitation  committed  to 
writing,  if  these  limits  may,  at  any  time,  be  passed  by  those  intended  to  be 
."estrained?  The  distinction  between  a  government  with  limited  and  unlim- 
ited powers  is  abolished,  if  those  limits  do  not  confine  the  persons  on  whom 
they  are  imposed,  and  if  acts  prohibited  and  acts  allowed,  are  of  equal 
obligation.  It  is  a  proposition  too  plain  to  be  contested,  that  the  consti- 
tution controls  any  legislative  act  repugnant  to  it;  or,  that  the  legislature 
may  alter  the  constitution  by  an  ordinary  act.  .   .   . 

It  is  emphatically  the  province  and  duty  of  the  judicial  department  to 
say  what  the  law  is.  Those  who  apply  the  rule  to  particular  cases,  must 
of  necessity  expound  and  interpret  that  rule.  If  two  laws  conflict  with 
each  other,  the  courts  must  decide  on  the  operation  of  each 

So  if  a  law  be  in  opposition  to  the  constitution;  if  both  the  law  and  the 
constitution  apply  to  a  particular  case,  so  that  the  court  must  either  decide 
that  case  conformably  to  the  law,  disregarding  the  constitution;  or  con- 
formably to  the  constitution,  disregarding  the  law ;  the  court  must  determine 
which  of  these  conflicting  rules  governs  the  case.  This  is  of  the  very 
essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  constitution,  and  the  constitution 
is  superior  to  any  ordinary  act  of  the  legislature,  the  constitution,  and  not 
such  ordinary  act.  must  govern  the  case  to  which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  constitution  is  to  be 
considered,  in  court,  as  a  paramount  law.  are  reduced  to  the  necessity  of 
maintaining  that  courts  must  close  their  eyes  on  the  constitution,  and  see 
only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written  consti- 
tutions. It  would  declare  that  an  act  which,  according  to  the  principles  and 
theory  of  our  government,  is  entirely  void,  is  yet.  in  practice,  completely 
obligatory.  It  would  declare  that  if  the  legislature  shall  do  what  is  expressly 
forbidden,  such  act,  notwithstanding  the  express  prohibition,  is  in  reality 


i^ 


368  THE  UNITED  STATES:  A  STUDY   IN    INTERNATIONAL  ORGANIZATION 

effectual.  It  would  be  giving  to  the  legislature  a  practical  and  real  omnipo- 
tence, with  the  ?ame  breath  which  professes  to  restrict  their  powers  within 
narrow  limits.  It  is  prescribing  limits,  and  declaring  that  those  limits  may 
be  passed  at  pleasure.  ^ 

_  That  it  thus  reduces  to  nothing  what  we  have  deemed  the  greatest 
improvement  on  political  institutions— a  written  constitution— would  of 
Itself  be  sufficient,  in  America,  where  written  constitutions  have  been 
viewed  with  so  much  reverence,  for  rejecting  the  '.s'niction,  But  the 
peculiar  expressions  of  the  constitution  of  the  Unitea  M>  js  furnish  addi- 
tional arguments  in  favor  of  its  rejection 

„„HL*'^,ii"'^'^'^!fT"  °^  *'"'  ^"''^''  ^'^*"  '*  extended  to  all  cases  arising 
under  the  constitution.  * 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say  that  in 
using  it  the  constitution  should  not  be  looked  into?  That  a  case  arising 
^'^A  "^^<:°".st't"."o"  should  be  decided  without  examining  the  instrument 
unoer  wnicn  it  arises? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then   the  constitution  must  be  looked  into  by  the  judges 

or  obly?'^^  "^^  °^*"  '*  ^*  *"'  '^''''  ^^"^  °^  '*  *'*"  ^^^^  forbidden  to  read 

Two  further  cases  may  be  considered  in  this  connection,  McCulloch  v 
Maryland  (4  Wheaton,  316),  decided  in  1819,  and  Collector  v.  Dav  (W 
Wallace,  113),  decided  in  1870. 

For  present  purposes,  the  facts  in  McCulloch  v.  Maryland  may  be  stated 
as  an  attempt  on  the  part  of  the  State  of  Maryland,  by  act  of  its  legislature 
to  impose  a  tax  upon  a  branch  of  the  bank  of  the  United  States  establish- 
ment in  that  State.  We  are  not  concerned  with  the  power  of  the  United 
States  to  establish  a  bank,  for,  although  the  power  to  create  a  corporation 
was  not  given  in  express  terms  to  the  Congress  by  the  Constitution,  and 
while  the  Congress  might  not  have  been  authorized  to  establish  a  corpora- 
tion as  such,  without  relation  to  powers  expressly  or  imoliedlv  granted 
nevertheless  the  court  found  that  a  corporation  could  be  created,  such 
as  a  bank,  as  a  financial  or  fiscal  agent  of  the  United  States,  under 
the  authorization  to  Congress  to  make  all  laws  which  shall  be  necessar> 
and  proper  for  carrying  into  execution  the  powers  vested  in  the 
Congress. 

Admitting  the  -    v      to  create  the  bank  as  an  agency  of  the  government 
of  the  Union,  the  .  held  that  a  State  of  the  Union  could  not  tax  an 

agency  of  tht  General  Government,  and  that  a  law  of  Maryland  attempting  to 
do  so  was  unconstitutional,  and  therefore  null  and  void,  inasmuch  as  the 
United  States  was  sovereign  and  could  therefore  lawfully  exercise  sovereign 
powers  within  the  limits  of  the  Constitution.  It  was  the  opinion  of  the 
court  that, 

'  1  Cranch,  175-9. 


THE   NATURB  OF  JUDICIAL   POWER 


369 


may 


«,Jt^^!^*"n  ••'*'*  ^^T  °^  sovereignty  are  divided  between  the  govern- 
ment of  the  Union,  and  those  of  the  States.    They  are  each  sovereien   with 

[oTh*^ nV  *.^'  °''J"''  ?"""i""'  '°  •*•  »"d  "'^i^l'er  sovereign  w'rrMpect 
to  the  objects  committed  to  the  other.'  "^'h^^i 

These  were  not  idle  words  on  the  part  of  Mr.  Chief  Justice  Marshall. 
He  meant  what  he  said.  and.  recognizing  that  "  In  America,  the  powers  of 
sovereignty  are  divided  between  the  government  of  the  Union,  and  those  of 
the  States,  the  Supreme  Court  held  the  reverse  to  be  true  in  the  case  of 
Collector  V.  Day  (11  Wallace.  113).  that  the  United  States  could  not.  under 
the  Constitution,  tax  an  agent  of  the  States,  in  this  particular  instance  a 
judicial  officer  of  Massachusetts,  and  that  an  Act  of  Congress  attempting  to 
do  so  was  unconstitutional,  and  therefore  null  and  void.  In  delivering  the 
opinion  of  the  court,  Mr.  Justice  Nelson  referred  throughout  to  McCulhch 
V.  Maryland,  saying: 

tnvifJn'i?"?^''*'!:!"/'"'  ^^'"^  °^  A{cC«//ofA  V.  Maryland,  that  the  power  of 
taxation  by  the  Sta  es  was  not  abridged  by  the  grant  of  a  similar  power 
o  the  government  of  the  Union;  that  it  was  retained  bv  the  Sta^  and  t^It 
^!oTJ\lV°-^  concurrently  exercised  by  the  two  governm^ntsrand 
nL?inI^  .  .u'  "'  "P'"'  constitutional  prohibition   upon   the   States 

again  t  taxing  the  means  or  instrumentalities  of  the  general  governrnent 
Sri'  IT'^'"''  ^K^'  ^*=  ^«f"  P'°P"'y  held,  to  be  prohibited  by  nVces- 
th,T  ""P'«»'0":.o«h7wise.  the  States  might  impose  taxation  to  an  extent 

Iu?Lhh        r^^"'  '^  "°'  .*^°"y  ''"f^^*-  '^^  operations  of  the   Federa 
authorities  when  acting  m  their  appropriate  sphere.' 

That  the  United  States  could  not  tax  an  agency  of  the  State  would  seem  to 
be  as  dear  as  that  the  State  could  not  tax  an  agency  of  the  United  States, 
and  Mr.  Justice  Nelson,  speaking  for  the  court,  so  held  for  the  following 
reasons :  * 


fhJ\u  ""'  '"'^  °^  construction  of  the  Constitution  of  the  Union 
that  the  sovereign  poxN.rs  vested  in  the  State  governments  by  their  resnec 
tive  constitutions,  remained  unaltered  and  unimpaired,  except  so  far  as  t'S, 
were  granted  to  the  government  of  the  United  States.  That  the  in^ent^on 
of  the  framers  of  the  Constitution  in  this  resp-rt  might  not  be  misunder 
stood  this  rule  of  interpretation  is  expressly  declared  in  the  tenThartic  e 
o  the  amendments,  namely:  "The  powers  not  delegated  to  the  United 
States  are  reserved  to  the  States  respectively,  or.  to  the  people  "The  Jov 
ernment  of  the  United  States,  therefore,  can  claim  no  ^powers  whShTe' 
not  granted  to  it  by  the  Constitution,  and  the  powers  actuallv  granted  musi 
be  st  ch  as  are  expressly  given,  or  given  by  necessary  implication 

Ihe  genera  government,  and  the  States,  although  both  exist  within  the 
^me  termona  limits,  are  separate  and  distinct  sovereignties  acHng  sepa- 
rately and   independently  of  each  other,  within  their  respective  sphcTes. 

'  4  Wheaton.  410. 
•11  Wallace.  123-4. 


Court'a 
Reljtion 
to  the 
GovernmfDt 
and  to  the 
Sutei 


1 


Ml 


370  THE  UNITED  STATES:   A   STUDY   IN   INTEJtNATIONAL  OKGANIZATION 

The  former  in  its  appropriate  sphere  is  supreme;  but  the  States  within  the 
limits  of  their  powers  not  granted,  or,  in  the  language  of  the  tenth  amend- 
ment, "  reserved."  are  as  independent  of  the  general  government  as  that 
government  within  its  sphere  is  independent  of  the  States.' 

It  is  indeed,  as  Mr.  Chief  Justice  Marshall  said,  "  the  province  and  duty 
of  the  judicial  department  to  say  what  the  law  is  "  and  that  it  is  "  of  the 
very  essence  of  judicial  duty  "  to  decide  the  conflict  between  competing  rules 
of  law.  But  the  judicial  power  of  the  United  States  was  not  meant  to  be 
and  is  not  the  agency  of  *he  General  Government,  to  mainta<n  its  supremacy 
at  the  expense  of  the  Staces.  It  maintains  the  powers  which  the  States,  in 
their  common  interest,  freely  granted  to  the  agency  of  their  creation,  which 
we  caTTthe  United  States,  and  protects  it  from  assault  by  one  of  the  States 
in  its  own  interest.  On  the  other  hand,  it  maintains  the  rights  of  the  States 
not  granted  by  them  to  the  Government  of  the  Union,  but,  in  the  language 
of  the  10th  Amendment,  "  reserved  to  the  States  respectively,  or  to  the 
people  "  against  assault  of  that  Government  in  the  unconstitutional  exercise 
of  power.  As  Chief  Justice  Chase  said  in  the  great  and  leading  case  of 
Texas  v.  White  (7  Wallace,  700,  725),  decided  in  1868,  at  a  time  when  the 
<^xistence  of  the  States  depended  upon  the  correct  interpretation  of  the  judi- 
cial power  of  the  United  States: 

..."  the  people  of  each  State  compose  a  State,  having  its  own  gov- 
ernment, and  endowed  with  all  the  functions  essential  to  separate  and  inde- 
pendent existence,"  and  that  "  without  the  States  in  union,  there  could  be 
no  such  political  body  as  the  United  States"  [County  of  Lane  v.  The 
State  of  Oregon,  7  VVall.  76.]  Not  only,  therefore,  can  there  be  no  loss 
of  separate  and  independent  autonomy  to  the  States,  through  their  union 
under  the  Constitution,  but  it  may  be  not  unreasonably  said  that  the  pres- 
ervation of  the  States,  and  the  maintenance  of  their  governments,  are  as 
much  within  the  design  and  care  of  the  Constitution  as  the  preservation  of 
the  Union  and  the  maintenance  of  the  National  government.  The  Consti- 
tion,  in  all  its  provisions,  looks  to  an  indestructible  Union,  composed  of 
indestructible  States. 

A  difificulty  standing  in  the  creation  of  an  international  court  of  justice  has 
been,  and  appears  «*ill  lo  be,  the  difficulty  of  distinguishing  judicial  from 
political  power.  There  .ppears  to  be  a  willingness  to  create  an  international 
judiciary,  reserving,  however,  the  right  of  each  State  in  controversy,  to 
determine  whether  the  question  involved  is  or  is  not  political. 

The  experience  of  the  United  States  shows  that  this  question  can  properly 
be  determined  by  a  court,  because  in  a  long  line  of  decisions  the  Supreme 
Court  of  the  United  States  has  not  only  &en  able  to  draw  the  line  with 
precision,  but  also  to  the  satisfaction  of  the  litigating  parties. 

The  nature  of  judicial  power  should,  therefore,  be  clear  to  those  who  really 
care  to  unveil  its  mysteries. 
■  11  Wallace,  124. 


XVIII 


=1 


POWERS  OF  THE  SUPREME  COURT 

I  directed  this  cause  to  stand  over  for  judgment,  not  so  much  from  any  doubt  of  what 
was  the  justice  of  the  case,  as  by  reason  of  the  nature  of  it,  the  great  consequence  and 
importance,  and  the  great  labour  and  ability  of  the  argument  on  both  sides,  it  being  for 
the  determination  of  the  right  and  boundaries  of  two  great  provincial  governments  and 
three  counties;  of  a  nature  worthy  the  judicature  of  a  Roman  senate  rather  than  of  a 
•ingle  judge:  and  my  consolation  is,  that  if  I  should  err  in  my  judgment,  there  is  a  judica- 
ture equal  in  dignity  to  a  Roman  senate  that  will  correct  it.    .    . 

The  relief  prayed  must  be  admitted  to  be  the  common  and  ordinary  equity  dispensed 
by  this  court;  the  specific  performance  of  agreements  being  one  of  the  great  heads  of 
this  court,  and  the  most  useful  one,  and  better  than  damages  at  law,  so  far  as  relates  to 
the  thing  in  specie;  and  more  useful  in  a  case  of  this  nature  than  in  most  others;  because 
no  damages  in  an  action  of  covenant  could  be  at  all  adequate  to  what  is  intended  by  the 
parties,  and  to  the  utility  to  arise  from  this  agreement,  vis.  the  settling  and  fixing  these 
boundaries  in  peace,  to  prevent  the  disorder  and  mischief,  which  in  remote  countries, 
distant  froni  the  seat  of  government,  are  most  likely  to  happen,  and  most  mischievous. 
Therefore  the  remedy  prayed  by  a  specific  performance  is  more  necessary  here  than  in 
other  cases:  provided  it  is  proper  in  oiher  respects:  and  the  relief  sought  must  prevail, 
unless  sufficient  objections  are  shewn  by  defendant;  who  has  made  many  and  varioui 
for  that  purofise.   .    .    . 

•  i'-  7"'»,<:°u'"«  therefore  has  no  original  jurisdiction  on  the  direct  question  of  the 
original  right  of  the  boundaries ;  and  this  bill  does  not  stand  in  need  of  that.  It  is  founded 
on  articles  executed  in  England  under  seal  for  mutual  consideration ;  which  gives  juris- 
diction to  the  King's  courts  both  of  law  and  equity,  whatever  be  the  subject  matter  . 
The  conscience  of  the  party  was  bound  by  this  agreement;  and  being  within  the  juris- 
diction of  this  court  (4  Inst.  213;  1  Ves.  sen.  204,  255),  which  acts  in  fcrstnam,  the  court 
may  properly  decree  it  as  an  agreement,  if  a  foundation  for  it.  To  go  a  step  farther: 
as  this  court  collaterally  and  in  consequence  of  the  agreement  judges  concerning  matters 
not  originally  in  its  jurisdiction,  it  would  decree  a  performance  of  articles  of  agreement 
to  perform  a  sentence  in  the  Ecclesiastical  court,  just  as  a  court  of  law  would  maintain 
an  action  for  damages  m  breach  of  covenant.  (Lord  Chancellor  tfardu-icke  m  Penn  v 
,?,  Villl','"''^;  '  '^'''"y-  ^/-  444.  446-44S.  decided  in  1750,  English  Reports.  Full  Reprint, 
Vol.  XXVll,  Chancery  I  II,  igo}.  pp.  1133-113$.) 

We  are  all  satisfied,  that  the  bill  must  be  dismissed.  It  ii  a  case  of  mutual  treaty 
between  persons  acting  in  that  instance  as  states  independent  of  each  cither;  and  the 
circumstance,  that  the  East  India  Comoany  are  mere  subjects  with  relation  f,.  this  country 
has  nothing  to  do  with  that  That  treaty  was  entered  into  with  them,  not  as  subjects  but 
as  a  neighbouring  independent  state,  and  is  the  same,  as  if  it  was  a  treaty  between  two 
sovereigns .  and  consequently  is  not  a  subject  of  private,  municipal,  jurisdiction.  (Barclay  v 
Russell,  3  I  es.  424.    Bolder  v.  Lord  HuntingHeld.  9  I'es.  283.) 

The  Court  considers  the  case  totally  independent  of  the  judgment,  the  Lord  Chancellor 
pronounced:  for  the  case,  upon  which  the  Court  proceeds,  is  introduced  by  the  answer, 
which  has  added  a  great  number  of  particulars  to  the  case  by  introducing  the  other  treaty 
which  explains  the  first ;  and  shews,  it  was  not  mercantile  in  its  nature,  but  political  and 
therefore  this  decision  stan.ls  wholly  clear  of  the  judgment  upon  the  plea  {Lord  Commis- 
sioner hyre  mSabob  of  the  Camatic  v.  East  India  Company,  i  Vesey.  Jr..  56.  60.  decided 
t»  1793,  Engluh  Reports,  Full  Reprint.  Vol.  XXX.  Chancery  X.  igo3,  p  523.) 

If  the  bill  contains  no  ave  ment  of  a  right  of  soil  in  New-York.  I  think  it  must  be 
defective,  and  lays  no  foundation  for  an  injunction  To  have  the  benefit  of  the  a«recmcnt 
between  the  states,  the  defendants  below  (who  are  the  settlers  of  New-York)  must  apply 
to  a  court  of  equity  as  well  as  the  state  herself;  but.  in  no  case,  can  a  specific  performance 
be  decreed,  unless  there  is  a  substantial  right  of  soil,  not  a  mere  political  jurisdiction,  to 
be  protected  and  enforced.  (Chef  Justice  Ellsworth  in  State  of  New  York  v.  State  of 
Connecticut,  4  Dallas,  3.  4,  note,  decided  in  1709.)  ' 

371 


372 


THE  UNITED  STATES:  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 


"^O 


'I 


.  '!'•  «nphttic«IIv  the  province  and  duty  of  the  judicial  department  to  «ay  what  the  law 
U.  Those  who  apply  the  rule  to  particular  cases,  must  of  iieiessily  expound  and  mterp'et 
tiiat^rule.    If  two  laws  conflict  with  each  other,  the  courts  must  decide  Tthe  operatio'f  of 

•nnuf.''  *  ''T'-  *?  '"  "PP"*'''""  »°  •*"  constitution:  if  both  the  law  an.l  the  constitution 
r/^  '^  .rJLP'H*"'"  r  "'"■  '"  ""'  "'^  ""I'  """'  *'"'"  J"*"!'  'hat  case  ccnformably  to X 
Sr Vn  V,'*^  ''  "if  ""^  constitution:  or  conformably  to  the  constitution,  disregarding  tVie  law 
the  court  must  delermine  which  of  these  conflicting  rules  governs  the  case     This  is  of  the 

|he^i|j;";n;S^r'S^'ft^!i^'.!^j^«  ^)r^:^  '\^ -x:  jv^hT:z^d 

tTJn':  '°'"T  ""T*  "'  '!«i»'»"ve  power  over  a  neighbouring  p^p?e,"ssertmj  the  r 
independence;  their  right  to  which  the  state  denies  b  i     v^,  mn^rimg  ineir 

.«;;„     t^!"  "j!"  .'■'ST"  "»  to  control  the  legislature  of  Georgia,  and  to  restrain  the  ex- 

pr.:;^ti:,^,c''d''-fc?s  tL^rh-j^ 

.o„lal.''7,?.™ '.!!''  ■'■;'"  •',»''  "«>  original  judicial  power.  J  Ves.  sen.  447  He  decided  oci 
?lfil,  L  '^'  colonial  courts,   settled  boundaries,  in   virtue  of   his  prerogative    whe^ 

t  and  fhrr^^folfT/"'-  ''"!  '*  ""^  "  »  di'Puted  agreement,  the  king^annm  de^rree  on 
the  cl  ract  I  Ves  sen"  «7  T''  '■ /"  »«i  <t<.«""""««  *"  '"other  place,  on  the  foot  of 
tnJn.   I  V  ^i  .t"i  •         '"  *"■'"'  °^  •"*  prerogative,  where  there  was  no  agree- 

ment I  Vcs.  sen.  205,  the  king  acts  not  as  a  judge,  but  as  the  sovereign  acting  by  the  advice 
of  his  counsel,  the  members  whereof  do  not  and  cannot  sit  as  judges.    By^ihe  statute  20 

^d  es  V-  tlir^tf-^^dic^atV;  'a^c'col^diSgr th^/'ra^!:-^  TRutlWrri  Tn'Tt"/! 
L'j^itat;!tTmre1y'2.'hraTvi.e'r".:'  '.'"'"'  '"^'^  -•'"'*"  °'  -"cil.'dVd  Z'tn 
B^iilLr?"^"'  ""'5°"»y  !»  competent  to  settle  what  is  the  line  between  judicial  and 
?^nli,.?i  ^°Y!u  '""^  1""<lons.  It  appears  from  this  view  of  the  law.  as  admini«lred^n 
England  and  the  courts  of  the  United  States,  to  have  been  done  without  any  oni  decision 
o  the  contrary,  from  the  time  of   Edward  the  Th-rd      The  statute  referred  °o    operated 

b^  the  Mrliarn;°of'p'"'l''^'"  ,?"*'•'''",'  ''"'^'"'^-  *'"^»'  *"'  submitted  to  jud.cJ'^o'^r 
when  th?,  haThrln  .  "^h"'';.,""  P'^P'*."'  I?K»lature  of  these  states,  or  congress;  and 
be^a  dead  leUer  if  w^H.H  .V^'  constitution,  in  reference  to  disputed  Ix>undarfes.  i  wiM 
^     (  1/r    /ll?       n  Tj    ■     .°*  "•''■cise  '«  now.  as  this  Court  has  done  in  the  cases  referred 

of  hirTsd'^fon'fn^lhT''*  *"'  '^'  '=°^"';'  ^or the  defendants  to  dismiss  the  bill  for  want 
Th     I'l.,^  ^f\}  l"^  ?  precedent  IS  found  in  the  case  of  The  Slair  of  Rhode  Island  v 

lh.\^L  ,  ^  .Wa«fl<-A«^,-«j  I,  IS  claimed  that  the  court  has  no  jurisdiction  either  over 
the  firs^^  Zh'^.'"  '°"h  "?  ""'k''*"  °'  °"r  the  parties  defendanis.  And  "n  suppor"  of 
the  hrst  ground,  it  is  urged  that  the  matters  invo  ved.  and  presented  for  adiiidicatioti    ari 

H^Jm.^     .      "'"°"  .'■""".V'""  the  organization  of  the  government   into  the  three  great 

^^Vz::i'o(':^'^-^r^^:-i2^!^''^^''-  »■"•  ^-"  ••^^ «»'«--  -<•  "-."-on 

^rJ^'Ll"'^"^"'J  ''°*'^!i  '*  '■^^}"1  '".°"'  supreme  court,  and  in  such  inferior  courts  as  Con- 
departm??;.s°  '""^  """''"'' ^  '^'  P°""=*'  P°*"  °'  "^'  government  in  the  other  , wo 

The  distinction   between   judicial   and  political   power  is   so  generally  acknowledged  in 
lr,\'Z"^"}'t""  ^,"^°^  ^"^^^"'^  »"''  °f  »his  country,  that  we  n«d  do  L  m^re  t'aTre^ 

LcT-fhe  Eaft"'nHiL''r  °", 't'  '"^'?'  Jc^2."/ ''^^  '"  ""'  '"^"'i""      NaU  of  Car 
more    i   V«ev    ill?     \^    '  v  ^"^y- J'-  •'75:393.  S.  Q.  2  Id.  56-60;  Penn  t.  Lord  Balti- 
Georgil   5  Pe^irt^  in   M   m"'?"?  %-c^%TT'''-  1  P  ""-,^6;  The  Cherokee   Nation  v. 
chuseTts'  12  lb   657  7JJ  7M  717  7«^vTi.%^'V*  °^ '?"°''*  y"""*  "•  'fhe  State  of  Massa- 
ge,T/,dV'id<-dV„  /W/)'       •  ^^^'  ^^-    ^'"*'- ''"'""  '^'^<"' '"  ^""S<o  V.  Stanton,  6  Wallace. 

UniTrH^  >?,=!'' '°"^  I"**  /'"•'■  l.''"*^"'''.!  assigned  to  this  Court  in  the  Government  of  the 
Lnittd  States,  differ  from  that  of  the  highest  judicial  power  in   England,  whidl  is  sub- 


POWERS  OF   THE   SUPREME    COURT 


373 


ordinate  to  the  lepdative  power,  and  bound  to  obey  any  law  that  Parliament  may  pan, 
aJthough  It  mav.  in  the  opniiDii  of  the  court,  be  in  conrtict  with  the  principlet  of  Magna 
Charta  or  the  Petition  of  Rights 

The  reaKin  for  giving  juch  unusual  power  to  a  judicial  tribunal  is  obviom.  It  wai 
""«"■'■>'.'"  B've  It  from  the  complex  character  of  the  Government  of  the  United  Slates, 
which  IS  in  part  National  and  in  part  Federal:  where  two  separate  governments  exercise 
certain  powers  of  sovereignty  over  the  same  territory,  each  independent  of  the  other  within 
Its  appropriate  sphere  of  action,  and  where  there  wa«.  therefore,  an  absolute  necessity,  in 
order  to  preserve  internal  l-aiiquillity,  that  there  should  be  some  tribunal  to  decide  between 
the  Oovernment  of  the  L'nited  States  and  the  government  of  a  State  whenever  any  con- 
troversy should  arise  as  to  their  relative  and  respective  powers  in  the  common  territory. 
1  he  Supreme  Court  was  created  for  that  purpose,  and  to  insure  its  impartiality  it  wai 
absolutely  necessary  to  make  it  independent  of  the  legislative  power,  and  the  influence  direct 
or  indirect  of  Congress  and  the  Executive.  Hence  the  care  with  which  its  jurisdiction, 
powers,  and  duties  are  defined  in  the  Constitution,  and  its  independence  of  the  legislative 
branch  of  the  government  secured.  (Chief  Justict  Taney  in  Gordon  v.  L'nited  StaUs 
117    imied  Stales,  697,  700-701,  decided  in  1864.) 

It  »vas  to  prevent  an  appeal  to  the  sword  and  a  dissolution  of  the  compact  that  this 
court,  by  the  organic  law,  was  made  equal  in  origin  and  equal  in  title  to  the  legislative  and 
exectitive  branches  of  the  government :  it&  powers  defined,  and  limited,  and  made  strictly 
judicial,  and  placed  therefore  beyond  the  reach  of  the  powers  delegated  to  the  Legislative 
•nd  Executive  Departments.  jChief  Jtutke  Taney  in  Gordon  v.  United  Stales.  117  United 
Hales,  (x)7,  701,  decided  m  1S64.) 

The  leipl  supremacy  of  the  constitution  is  essential  to  the  existence  of  the  state :  the 
glory  of  the  founders  of  the  United  States  is  to  have  devised  or  adopted  arranger  ents 
under  which  the  Constitution  became  in  reality  as  well  as  name  the  supreme  law  of  the 
land.  1  his  end  they  attained  by  adherence  to  a  very  obvious  principle,  and  by  the  invention 
ot  appropriate  machinery  for  carrying  this  principle  into  effect. 

The  principle  is  clearly  expressed  in  the  Constitution  of  the  United  States  "The 
Constitution  runs  article  6  "and  the  laws  of  the  United  States  which  shall  be  made  m 
pursuance  thereof  .  .  shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every 
state  shall  be  bound  thereby,  anything  in  the  constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding"     The  import  of  these  expressions  is  unmistakable. 

lo  have  laid  down  the  principle  with  distinctness  is  much,  but  the  great  problem  was 
how  to  ensure  that  the  principle  should  be  obeyed;  for  there  existed  a  danger  that  iudees 
depending  on  the  federal  government  should  wrest  the  Constitution  in  favour  of  the  central 
power,  and  that  judges  created  by  the  States  shoul.l  wrest  it  in  favour  of  State  rights  or 
interests  This  problern  has  been  solved  by  the  creation  of  the  Supreme  Court  and  of  the 
federal  Judiciary  (.llbert  /  <•«»  Dtcey,  Introduction  to  the  Study  of  the  Uw  of  the  Con- 
stttulwn,  iSSs,  Sih  edition,  1915,  fp.  154-135  ) 


CHAPTER  XVIIl 


f#^ 


Dftermiiia- 
tion  of 
Constitu- 
liolMliljr 


POWERS  OF  THE  SUPREME  COURT 

In  settling  the  jurisdiction  of  the  Supreme  Court,  the  draft  of  the  Con- 
stitution as  it  left  the  hands  of  the  Committee  of  Detail  provided in  the 

3d  section  of  its  11th  article,  that  "the  Jurisdiction  of  the  Supreme  Court 
shall  extend  to  all  cases  arising  under  laws  passed  by  the  Legislature  of  the 
United  States."  That  the  court  should  possess  and  that  it  should  only  exer- 
cise judicial  power  was  the  intent  of  the  framers  of  the  Constitution,  as 
plainly  indicated  by  the  following  passage  from  Mr.  Madison's  Notes: 

Doc'.  Johnson  moved  to  insert  the  words  "  this  Constitution  and  the  " 
before  the  word  "  laws." 

M'.  Madison  doubted  whether  it  was  not  going  too  far  to  extend  the 
jurisdiction  of  the  Court  generally  to  cases  arising  Under  the  Constitution, 
&  whether  it  ought  not  to  be  limited  to  cases  of  a  Judiciary  Nature.  The 
right  of  expounding  the  Constitution  in  cases  not  of  this  nature  ought  not 
to  be  given  to  that  Department. 

The  motion  of  Doc'.  Johnson  was  agreed  to  nem :  con :  it  being  generally 
supposed  that  the  jurisdiction  given  was  constructively  limited  to  cases  of 
a  Judiciary  nature. 

And,  that  there  might  be  no  doubt  on  this  point,  Mr.  Madison  moved  that 
the  phrase  "  the  jurisdiction  of  the  Supreme  Court "  should  be  stricken  and 
replaced  by  the  words  "Judicial  power,"  which,  as  Mr.  Madison  records, 
"  was  agreed  to  nem :  con :  "  * 

The  framers  of  the  Constitution  were  clear  in  their  minds  as  to  the  func- 
tion of  the  Supreme  Court.  The  Government  of  the  Union  as  well  as  the 
Union  itself,  owes  its  existence  to  the  Constitution,  and  that  instrument  is 
at  once  the  source  and  measure  of  power  which  these  United  States  can 
lawfully  exercise.  Laws  in  accordance  with  it  are  constitutional,  laws 
inconsistent  with  it  are  unconstitutional,  whether  they  be  laws  of  the  Con- 
gress, constitutions  or  laws  of  the  States  of  the  Union. 

To  determine  these  questions  is  important,  often  difficult,  and  as  deli- 
cate as  difficult.  The  power  to  do  so  must  be  lodged  somewhere.  The  legis- 
lature can  not  decide  whether  its  act  is  proper,  because  so  to  do  would 
subordinate  the  Constitution  to  its  creature.    The  executive  can  not  decide 

Ati^st'zTth'""^^   "'"°'^    "^    ""    Coii/<«i,M<,«,    Vol.    III.    pp.    626.    f^.     Session    of 

374 


POWBU  or  THE  tUPUUB  COURT 


375 


finally,  although  he  may  exercise  a  veto  upon  legislation,  because  to  do  so 
would  subordinate  the  Constitution  to  his  will  or  pleasure.  The  framers  of 
the  Constitution,  therefore,  confided  the  (ietermination  of  these  questions 
to  the  judicial  power  by  extending  it  "  to  all  cases  in  law  and  equity  arising 
under  this  Constitution,  the  laws  of  the  United  States  and  treaties  made  or 
which  shall  be  made  under  their  authority."  .Xnd,  that  there  might  be  no 
doubt  upon  this  fundamental  question,  they  provided,  in  Article  6.  that 
"  This  Constitution  and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof;  and  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the  land;  and 
the  judges  in  every  State  shall  be  bound  thereby,  anything  in  the  constitu- 
tion or  laws  of  any  State  to  the  contrary  notwith-standinR." 

Upon  this  section  two  observations  may  be  made  at  this  time:  fiist,  the 
Constitution  is  supreme,  an  equality  only  shared  by  the  laws  of  the  Jnited 
States  made  in  pursuance  thereof  and  by  treaties  of  the  United  States; 
second,  that  the  judges  of  the  States,  in  interpreting  laws,  are  to  be  bound 
by  the  supreme  law  of  the  land. 

No  authority  need  be  cited  for  the  statement  that  the  interpretation  of 
a  written  instrument  is  a  judicial  question.  The  colony  was  bound  by  its 
charter,  and  all  acts  of  the  colony  or  colonists  in  excess  '  'he  charter  as 
authoritatively  interpreted,  were  void.  The  Constituti>.  as  to  be  the 
charter  of  the  erstwhile  colonies,  now  States  of  the  Unioi.,  and  all  acts  in 
excess  of  the  powers,  directly  or  indirectly  granted  to  the  Government  of 
the  Union,  were  to  be  null  and  void.  In  the  case  of  the  colony,  the  King  in 
Council  decided ;  in  the  case  of  the  Union,  the  Supreme  Court  of  the  States. 

It  was  therefore  essential  that  the  judicial  power  should  not  be  associated 
in  the  labors  of  the  executive  or  legislative  branch.  The  judges  should  not 
be  members  of  the  proposed  but  unadopted  Council  to  revise  the  laws  of  the 
States,  nor  should  they  be  memliers  of  an  advisory  council  to  the  executive; 
for  they  could  not  be  expected  to  pass  upon  the  actions  of  one  or  the  other 
in  a  spirit  of  detachment,  if  they  had  been  dirrctly,  or,  indeed,  indirectly, 
concerned  with  either.  Therefore,  the  judges  should  hold  the  scales  of  jus- 
tice firmly  in  their  hands,  lest  the  legislative  or  executive  should  tip  the  bal- 
ance against  the  Constitution.  The  functions  of  the  judges  were  to  be  and 
to  remain  judicial,  and  the  judicial  power,  therefore,  was  to  stand  separate 
and  apart  from  the  legislative  and  the  executive  branches,  which,  in  con- 
tradistinction to  the  judiciary,  can  be  called  the  political  branches  of  the 
Government. 

In  the  exercise  of  their  respective  powers,  the  legislative  and  the  execu- 
tive could  not  be  subject  to  the  judiciary,  because  the  exercise  of  a  right 
depends  upon  the  body  possessing  it.    It  may  decide  wisely  or  unwisely,  but, 


Powers 
Purely 
)u<licill 


376 


Till  UNITKD  •TATES:   A   rfUDY   IN    INTE«NATION*L  OltCANIZATION 


I'nIitiMi 
Con  I  railed 
with 
JikIicuI 
ruwert 


having  the  power  to  decide,  it  necessarily  must  determine  when  it  shall  or 
shall  n.)t  make  a  use  of  this  power.  The  function  of  the  judiciary  can  only 
be  to  determine,  not  the  wiMJom  or  the  folly  of  the  exercise  of  power,  but 
whether  the  power  exercised  is  or  is  not.  in  an  appropriate  case,  within  the 
power  expressly  or  impliedly  delegated  by  the  Constitution  to  the  Govern- 
ment  of  the  Union. 

If  the  question  is  political,  the  judicial  power  will  not  pass  upon  it.  as 
the  legislative  and  executive  branches  of  the  Government  are  vested  with  its 
exercise.  If,  however,  it  is  claimed  by  the  legislative  or  executive  to  |je 
political,  whereas  in  fact  it  is  not.  the  judicial  power  extends  to  it.  inasmuch 
as  the  legislative  and  executive  <lcpartments  of  the  Government  can  only 
exercise  ptilitical,  not  judicial  power;  and  even  if  the  question  be  political, 
the  judiciary  must  needs  examine  it  in  a  proper  and  specific  case,  in  order  to 
determine  whether  it  is  within  or  without  the  gr.int  of  |K)wer.  It  was  to  be 
expected  that  cases  of  this  nature  would  arise.  They  have  frequently  arisen, 
and  can  liest  \ye  analyzed  and  defir.ed  by  deci.sions  of  the  Supreme  Court  of 
the  United  States. 

We  may  accept  in  the  abstract  the  separation  of  judicial  from  political 
functions;  but  it  is  only  through  the  concrete  case  that  the  line  of  demarca- 
tion, existing  in  theory,  is  rendered  visible  in  fact.  A  few,  therefore,  of 
the  many  cases  involving  this  question,  will  b^-  considered,  in  order  that  the 
reader  may  frame  for  himself  the  definition  of  political  power  and  draw 
the  line  between  judicial  power,  on  the  one  hand,  and  legislative  and  execu- 
tive power,  on  the  other. 

In  r,>^t,r  v.  Nnlson  (2  Peters.  253).  decided  in  1829.  the  Supreme 
Court  had  occasirm  to  consider  the  question  of  international  relations,  the 
conduct  of  which  is  confided  by  the  Constitution  to  the  President,  with  the 
advice  and  cmsent  of  the  Senate.  A  treaty  thus  made  is.  by  the  Constitu- 
tion, part  of  the  supreme  law  of  the  land.  .As  a  law.  the  judicial  power  is 
fxtci.led  to  it,  but  only  in  the  sense  of  interpreting  it  and  applying  it  to  a 
concrete  case  of  a  justiciable  nature.  The  propriety  of  making  the  treaty 
depends  upon  the  discretion  of  the  Presitlent  and  of  two-thirds  of  the 
Senators  present  during  its  consideration,  in  whom  he  treaty-making  power 
is  vested. 

Ilie  facts  in  the  case  are  very  complicated,  and  for  present  purposes  it 
may  be  said  that  the  plaintiffs  claimed  a  large  tract  of  land  lying  in 
Louisiana,  about  thirty  miles  east  of  the  Mississippi  River  and  in  the  pos- 
session of  the  defendant  under  a  grant  of  the  Spanish  Governor,  confirmed 
by  the  King  of  .Spain.  The  defendant,  admitting  the  grant,  claimed  that 
it  was  null  and  void  in  that  the  land  in  ([uestion  was  situated  in  territory 
which,  before  the  grant,  had  been  ceded  to  France  and  by  France  to  the 


rOWBM  OP   THE   SUPREME  COURT 


377 


United  States.  From  a  judgment  in  fav  »r  of  the  defendant,  had  in  the 
District  Court  of  the  United  States  tor  tlic  i;.isttrn  District  of  Louisiana, 
the  cause  was  heard  before  the  supreme  Court  upmi  a  writ  of  error.  Mr. 
Chief  Justice  Marshall  thus  state<i  the  facts: 

The  case  presents  this  very  intricate,  and.  at  one  time,  very  interesting 
question:  To  whom  did  the  country  »)et\Mrn  tlic  ll)ervillc  and  the  I'erdido 
rightfully  belong,  when  the  titk  now  asserted  by  the  plaintilTs  was 
acquired .' 

I  his  question  has  been  repeatedly  discussed,  with  great  talent  an<t 
research.  Iiy  the  government  of  the  United  States  and  that  of  Spain  The 
Lnitcd  States  have  |)erseveringly  and  earnestly  insisted,  that  by  the  treaty 
of  St  lldcionso.  made  on  the  1st  of  ()ctol>cr,  m  the  year  1800,  Spain  ceded 
the  disputed  territory  as  part  of  Lx>uisiana  to  France ;  and  that  Franco,  by 
the  treaty  of  F'aris.  signed  on  the  30th  of  April  180.1,  ami  ratified  on  the 
21st  of  CJctolier.  in  the  same  year,  ceded  it  to  the  United  States.  Spain 
has  with  equal  perseverance  and  earnestness  maintained  that  her  cession 
to  France  comprehended  that  territory  only  which  was  at  that  time, 
denominated  lx)uisiana,  consisting  of  the  isl.Vnd  of  ,\'ew  Orleans,  and  the 
country  she  received  from  France  west  of  the  Mississippi.' 

In  view  of  these  ^. 
of  the  court: 


instances.  Mr.  Chief  Justice  Marshall  said,  on  behalf 


However  this  may  be,  it  is,  we  think,  inconti stable,  that  the  .Xmeric.in 
construction  of  the  article,  if  not  entirely  free  from  (jncstion,  is  sujiported 
by  arguments  of  great  strength,  which  cannot  tie  easily  con  fund 

In  a  controversy  l)etween  two  nations,  concerning  n.-jtioiial  boundary,  it  is 
scarcely  possible,  that  the  courts  of  titlicr  should  refuse  to  aliide  by  the 
measures  adopted  by  its  own  government.  There  WinK  no  common  tri- 
bunal to  decide  between  them,  each  determines  for  itself  on  its  own  ri«lits, 
and  if  tliey  cannot  adjust  their  differences  peaccnblv,  the  right  remains  with 
the  strongest  The  judiciary  is  not  that  department  of  the  government,  'o 
which  the  assertion  of  its  interests  against  foreijjn  powers  is  confided ;  and 
its  diity  commonly  is  to  decide  upon  individual  rights,  according  to  tho.se 
principles  which  the  political  departments  of  the  nation  have  established. 
If  the  course  of  the  nation  has  been  a  plain  one.  its  courts  would  hesitate 
to  pronounce  it  erroneous. 

We  think,  then,  however  individual  judges  might  construe  the  treaty 
of  St.  Ildefonso.  it  is  the  province  of  the  Court  to  conform  its  decisions  to 
the  will  of  the  legislature,  if  that  will  has  been  clearly  expressed    .    . 

.After  these  acts  of  sovereign  power  over  the  territory  in  rlisputc,  assert- 
ing the  .\nierican  construction  of  the  treaty,  by  which  the  government  claims 
it.  to  maintain  the  opposite  construction  in  its  own  courts  would  certainly 
k  an  anomaly  in  the  historj-  and  practice  of  nations  If  those  dt  iKirtnicnis 
which  are  intrusted  with  the  foreign  intercourse  of  the  nation,  which  assert 
and  maintain  its  interests  against  foreign  powers,  have  unef|uivocally 
asserted  its  rights  of  dominion  over  a  country  of  which  it  is  in  possession. 
and  which  it  claims  under  a  treaty ;  if  the  legislature  has  acted  on  the  con- 
struction thus  asserted,  it  is  not  in  its  own  courts  that  this  construction  is 

'  Foster  V.  Xeilson.  2  Peters.  299. 


♦i'.' 


378  THE   UNITED  STATES:  A  STUDY  IN   INTEKNATIONAL  ORGANIZATION 


Tudictat 
Power  as  to 
Tfcalin 


*»iW-ii 


to  be  denied.  A  question  like  this  respecting  the  boundaries  of  nations,  is, 
as  has  been  truly  said,  more  a  political  than  a  legal  question,  and  in  its 
discussion,  the  courts  of  every  country  must  respect  the  pronounced  will 
of  the  legislature.' 

If  the  court  had  stopped  here,  we  should  be  perplexed  to  understand  how 
the  judicial  power  extends  to  treaties,  or  why,  if  it  does,  the  court  refused 
to  exercise  the  judicial  power.  This  was  not  overlooked  by  the  great  Chief 
Justice,  who  stated,  in  a  subsequent  portion  of  his  opinion,  both  the  nature 
of  a  treaty  as  a  contract  in  the  world  at  large,  as  a  law  in  the  United  States, 
and  the  conditions  under  which  the  judicial  power  attaches  to  it.    Thus: 

A  treaty  is,  in  its  nature,  a  contract  between  two  nations,  not  a  legislative 
act.  It  does  not  generally  effect,  of  itself,  the  object  to  be  accomplished; 
especially  so  far  as  its  operation  is  infra-territorial ;  but  is  carried  into  execu- 
tion by  the  sovereign  power  of  the  respective  parties  to  the  instrument. 

In  the  United  States,  a  different  principle  is  established.  Our  constitution 
declares  a  treaty  to  be  the  law  of  the  land.  It  is,  consequently,  to  be 
regarded  in  courts  of  justice  as  equivalent  to  an  act  of  the  legislature,  when- 
ever it  operates  of  itself  without  the  aid  of  any  legislative  provision.  But 
when  the  terms  of  the  stipulation  import  a  contract  when  either  of  the 
parties  engages  to  perform  a  particular  act,  the  treaty  addresses  itself  to 
the  political,  not  the  judicial  department;  and  the  legislature  must  execute 
the  contract,  before  it  can  become  a  rule  for  the  court.' 

TI.v;  same  question  presented  itself  in  a  different  form  in  IVilliams  v. 
Suffolk  Insurance  Co.  (13  Peteis,  415),  decided  by  the  Supreme  Court  in 
1839,  in  which  it  was  held  that  the  title  of  a  foreign  government  to  territory 
is  a  political  question,  to  be  decided  by  the  political  department,  not  by  the 
judicial  power  of  the  United  States.  In  delivering  the  opinion  of  the  court, 
Mr.  Justice  McLean  stated  the  facts  involved,  the  rule  of  law,  and  the 
reason  for  the  rule.    First,  as  to  the  facts: 

As  the  fact  is  stated  in  the  first  point  certified,  that  there  is  a  contro- 
versy between  this  government  and  that  of  Buenos  ;\yrcs,  whether  the 
jurisdiction  is  rightful,  which  is  assumed  to  be  exercised  over  the  Falkland 
Islands  by  the  latter;  and  tliat  this  right  is  asserted  on  the  one  side  and 
denied  by  the  other,  it  will  not  be  necessary  to  look  into  the  correspondence 
between  the  two  governments  on  the  subject.  To  what  sovereignty  any 
island  or  country  belongs,  is  a  question  which  often  arises  before  courts  in 
the  e.xcrcise  of  a  maritime  jurisdiction;  and  also  in  actions  on  policies  of 
insurance.' 

Next,  as  to  the  rule : 

And  can  there  he  any  doubt,  that  when  the  executive  branch  of  the 
government,   which   is   charged   with   our    foreign   relations,    shall,   in   its 

'2  Peters,  307,  309. 

'Ibid..  314. 

•  13  Peters,  420. 


POWERS  OF  TBE  SUPREME  COURT 


379 


correspondence  with  a  foreign  nation,  assume  a  fact  in  regard  to  the  sov- 
ereignty of  any  island  or  country,  it  is  conclusive  on  the  judicial  depart- 
ment? And  in  this  view,  it  is  not  material  to  inquire,  nor  is  it  the  province 
of  the  court  to  determine,  whether  the  cxecv.tive  be  right  or  wrong.  It  is 
enough  to  know,  that  in  the  exercise  of  his  constitutional  functions,  he  had 
decided  the  question.  Having  done  this,  under  the  responsibilities  which 
belong  to  him,  it  is  obligatory  on  the  people  and  government  of  the  Union.' 

Finally,  as  to  the  reason  of  the  rule: 


f 


If  this  were  not  the  rule,  cases  might  often  arise,  in  which,  on  the  most 
important  questions  of  foreign  jurisdiction,  there  would  l)e  an  irrecon- 
cilable difference  l)etween  the  executive  and  judicial  departments.  By  one 
of  these  departments,  a  foreign  island  or  country  might  be  considered  as 
at  peace  with  the  United  States ;  whilst  the  other  would  consider  it  in  a 
state  of  war.  No  well-regulated  government  has  ever  sanctioned  a  prin- 
ciple so  unwise,  and  so  destructive  of  national  character.  In  the  cases  of 
Foster  v.  Neilson,  2  Pet.  253,  307,  and  Garcia  v.  Lee,  12  Ibid.  511.  this 
court  have  laid  down  the  rule,  that  the  action  of  the  political  branches  of 
the  government  in  a  matter  that  belongs  to  them,  is  conclusive.  And  we 
think,  in  the  present  case,  as  the  executive,  in  his  message,  and  in  his  cor- 
respondence with  the  government  of  Buenos  Ayres,  has  denied  the  juris- 
diction which  it  has  assumed  to  exercise  over  the  Falkland  islands ;  the  tact 
must  be  taken  and  acted  on  by  this  court  as  thus  asserted  and  maintained.' 


•  Ibid. 

In  cases  involving  the  action  of  the  political  departments  of  the  government,  the  judi- 
ciary is  bound  by  such  action.  Williams  v.  Suffolk  Ins.  Co.,  13  Pet.,  420;  Garcia  v.  Lee, 
12  Pet.,  511;  Kennet  v.  Chambers,  14  How.,  38;  Foster  v.  tVeilson.  2  Pet..  253;  Nabob 
of  the  Canialic  v.  The  Last  Ii:d.  Co.,  2  Ves.,  Jr.,  60;  Luther  v.  lio:di->i,  7  How.,  1; 
Rhode  Island  v.  Massachusetts,  12  Pet..  714. 

The  judiciary  recognizes  the  condition  of  things  with  respect  to  the  government  of 
another  country  which  once  existed  as  still  subsisting,  unless  the  political  department  of 
its  own  government  lias  decided  otherwise.  Kennel  v.  Chambers,  7  How.,  38.  i.\Ir.  Justice 
Swayne  in  I'liiliil's  v.  I'ayne,  92  U.  S.,  130,  132,  decided  in  1875.) 

\\  ho  is  the  sovereign,  de  jure  or  de  facto,  of  a  territory  is  not  a  judicial,  but  a  political 
question,  the  determination  of  which  by  the  legislative  and  executive  dep.irtments  of  any 
government  conclusively  binds  the  judges,  as  well  as  all  other  officers,  citizens  and  sub- 
jects of  that  government.  This  principle  has  always  been  upheld  by  this  court,  and  has 
been  affirmed  under  a  great  variety  of  circumstances.  ( Mr.  Justice  Gray,  in  Jones  v. 
United  .'Stales.  137  U   S..  202,  212.  decided  in  1890.) 

It  appears  that  certain  American  citizens,  asserting  interests  in  the  Isle  of  Pines,  had 
contended  that  it  belonged  to  'he  United  States  imder  the  treaty,  and  the  sixth  clause  of 
the  Piatt  .Amendment,  while  not  asserting  an  absolute  claim  of  title  on  our  pirt.  pave 
opportunity  for  an  examination  of  the  question  of  ownership  and  its  settlement  through  a 
treaty  with  Cuba.  The  Republic  of  Cuba  has  been  governing  the  isle  since  May  20.  1902 — 
the  present  situation  need  not  be  discussed — and  has  made  various  improvements  in  admin- 
istration at  the  suggestion  of  our  Government,  but  Congress  has  taken  no  action  to  the 
contrary  to  Cuba's  title  as  superior  to  ours. 

It  may  be  conceded  that  the  action  of  both  the  political  departments  has  not  been  suffi- 
ciently definite  to  furnish  a  conclusive  interpretation  of  the  treaty  of  peace  as  an  original 
question,  and  as  yet  no  agreement  has  been  reached  under  the  Piatt  Amendment.  The 
Isle  of  Pines  continues  at  least  de  facto  under  the  jurisdiction  of  the  government  of  the 
Republic  of  Cuba,  and  that  settles  the  question  before  ns.  ...  It  must  be  treated  as 
foreign,  for  this  Government  has  never  taken,  nor  aimed  to  tike,  that  "ossession  in  fact 
and  in  law  which  is  essential  to  render  it  domestic.  (Mr.  Chief  Justice  Fuller  in  Percy  v. 
Strauahan.  205  U.  S.,  257.  271-2.  decided  in  1907.) 


t 


380 


THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  OBGANIZATION 


^*#- 


The  next  case,  entitled  Luther  v.  Borden  (7  Howard,  1),  decided  in 
1849,  is  a  very  important  one,  holding  that  the  recognition  of  a  government 
of  a  State  of  the  American  Union  is,  as  in  States  of  the  society  of  nations, 
a  political  question,  and  as  such  is  to  be  passed  upon  by  the  political,  not  by 
the  judicial,  department  of  the  United  States.  As,  however,  the  facts  of 
the  case  are  interesting,  and  as  Mr.  Chief  Justice  Taney  is  a  recognized 
authority  on  all  questions  pertaining  to  the  judicial  power,  the  facts  of  the 
case  and  the  opinion  of  the  court  are  briefly  given.  The  facts  and  the  hold- 
ing of  the  court  are  thus  stated  in  the  head-note  of  the  case : 


At  the  period  of  the  American  Revolution,  Rhode  Island  did  not,  like 
the  other  States,  adopt  a  new  constitution,  but  continued  the  form  of  gov- 
ernniL-nt  establisht-i!  by  the  cliarter  of  Charles  the  Second,  making  only  such 
alterations,  by  acts  of  tile  Legislature,  as  were  necessary  to  adapt  it  to  their 
cor  lition  and  rights  as  an  indi  :  ."ndent  State.    .    .    . 

In  1841  a  portion  of  the  peojjle  held  meetings  and  formed  associations, 
which  resulted  in  the  election  of  a  convention  to  form  a  new  constitution, 
to  be  submitted  to  the  people  for  their  adoption  or  rejection. 

This  convention  trained  a  constitution,  directed  a  vote  to  be  taken  upon 
it,  declared  afterwards  that  it  had  been  adopted  and  ratified  by  a  majority 
of  the  people  of  the  State,  and  was  the  paramount  law  and  constitution  of 
Rhode  Island. 

Under  it,  elections  were  held  for  Governor,  members  of  the  Legislature, 
and  other  officers,  who  assembled  together  in  May,  1842,  and  proceeded  to 
organize  the  new  government. 

But  the  charter  government  did  not  acquiesce  in  these  proceedings.  On 
the  contrary,  it  passed  stringent  laws,  and  finally  passed  an  act  declaring  the 
State  under  martial  law. 

In  May.  1843,  a  new  constitution.  v»hich  had  been  framed  by  a  con- 
vention called  together  by  the  charter  government,  went  into  operation,  and 
has  continued  ever  since 

The  question  which  of  the  two  opposing  governments  was  the  legitimate 
one,  viz  the  charter  government,  or  the  government  established  by  the  volun- 
tary convention,  has  not  heretofore  been  regarded  as  a  judicial  one  in  any  of 
the  State  courts  The  political  dejjartnient  has  always  determined  whether  a 
proposed  constitution  or  anienument  was  ratified  or  not  by  the  people  of  the 
State,  and  the  judicial  power  has  followed  its  decision. 

The  fmmers  of  the  Constitution  found  it  necessary  to  guarantee  the 
existence  of  the  States,  as  those  States  had  renounced  their  diplomacy  and  a 
resort  to  war,  and  they  did  so  in  the  following  manner  by  section  4  of  Article 
IV  of  that  instrument: 


The  L'nited  States  shall  guarantee  to  every  State  in  this  Union  a  Repub- 
lican Form  of  (lovernnicnt.  and  shall  piotcct  each  of  them  against  Invasion; 
and  'in  Application  of  the  Legislature,  or  of  the  Executive  (when  the  'l-egis- 
lature  cannot  be  convened)  against  domestic  Violence. 


\ 


POWERS   3F  THE   SUPREME   COURT  381 

Adverting  to  this  state  of  affairs,  Mr  Chief  Justice  Taney  thus  continues: 

Under  this  article  of  the  Constitution  it  rests  with  Congress  to  decide 
what  government  is  the  estabhslicd  one  in  a  State,  For  as  the  United 
States  guarantee  to  each  state  a  repubhcan  Rovernment,  Congress  must 
necessarily  decide  what  government  is  established  in  the  State  before 
It  can  determme  whether  it  is  repul)hcan  or  not.  And  when  the  senators 
and  representatives  of  a  State  are  admitted  into  the  councils  of  the  Union 
the  authority  of  the  governmem  under  which  thev  arc  appointed,  as  weli 
as  its  republican  character  is  recognized  by  the  proper  constitutional  au- 
thority. And  Its  decision  is  binding  on  every  other  de|)artment  of  the  trovem- 
ment,  and  could  not  be  questioned  in  a  judicial  tribunal.  It  is  true  that  the 
contest  in  this  case  did  not  last  long  enough  to  bring  the  matter  to  this  issue- 
and  as  no  senators  or  representatives  were  elected  under  the  authoritv  of 
the  government  of  which  Mr.  Dorr  was  the  head,  Congress  was  not  called 
upon  to  decide  the  controversy.  Yet  the  right  to  decide  is  placed  there  and 
not  in  the  courts. 

So.  too,  as  relates  to  the  clause  in  the  above-mentioned  article  of  the 
Constitution,  providing  for  cases  of  domestic  violence.  It  rested  with  Con- 
gress, too,  to  determine  upon  the  means  proper  to  be  adopted  to  fulfil  this 
guarantee.  I  hey  might,  if  they  had  deemed  i*  most  advisable  to  do  so  hive 
placed  It  m  the  power  of  a  court  to  decide  v  en  the  contingencv  had  hap- 
pened which  required  the  federal  government  to  interfere.  Hut  Congress 
thought  otherwise,  and  no  doubt  wisely;  and  by  the  act  of  February  28 
17'.'5,  provided,  that,  "in  case  of  an  insurrection  ;  my  State  aeainst  the 
government  thereof,  it  shall  he  lawful  for  the  Presi-!  of  the  United  States 
on  application  of  the  legislature  of  such  State  or  of  the  executive  (when  the 
legislature  cannot  be  convened),  to  call  forth  such  number  of  the  militia  of 
any  other  State  or  States,  as  may  be  applied  for,  as  he  m.iy  judge  sufficient 
to  suppress  such  insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had  arisen  upon 
which  the  government  of  the  United  States  is  bound  to  interfere  is  eiven 
to  the  President.' 

The  attitude  of  the  Supreme  Court  towards  political  questions,  and  the 
reserve  which  becomes  it  on  such  occasions,  are  admirably  pointed  out  by  the 
Chief  Justice  in  the  concluding  passage  of  his  opinion: 

Much  of  the  argument  on  the  part  of  the  plaintiff  turned  upon  political 
i.ghts  and  political  questions,  upon  which  the  court  has  been  urged  to  express 
an  opinion.  We  decline  doing  so.  I  he  high  power  has  been  conferred  on 
this  court  of  passing  judgment  upon  the  acts  of  the  State  sovereignties  and 
of  the  legislative  and  executive  branches  of  the  federal  government,  and  of 
determining  whether  they  are  beyond  the  limits  of  power  marked  out  for 
them  respectively  by  the  Constitution  of  the  United  States.  This  tribunal 
therefore,  should  be  the  last  to  overstep  the  boundaries  which  limit  its  own 
jurisdiction.  And  while  it  should  always  be  re.idy  to  meet  anv  question  con- 
fi(Ie<l  to  it  by  the  Constitution,  it  is  equally  its  duty  not  to  pass  beyond  its 
appropriate  sphere  of  action,  and  to  take  care  not  to  involve  itself  in  discus- 
sions which  properly  belong  to  other  forums.    No  one,  we  believe,  has  ever 

'  Luther  v.  Borden,  7  Howard.  42-3. 


382  THE  UNITED  STATES:  A  STUDY  IN   INTEKNATIONAL  ORGANIZATION 

doubted  the  proposition,  that,  according  to  the  institutions  of  this  country, 
the  sovereignty  m  every  State  resides  in  the  people  of  the  State,  and  that 
they  may  alter  and  change  their  form  of  government  at  their  own  pleasure. 
But  whether  they  have  changed  it  or  not  by  abolishing  an  old  government, 
and  establishing  a  new  one  in  its  place,  is  a  question  to  be  settled  by  the 
political  power.  And  when  that  power  has  decided,  the  courts  arc  bound 
to  take  notice  of  its  decision,  and  to  follow  it.' 


Intern r^ti.  nal 
Law 


In  the  Neil  son  case  (supra,  p.  376),  the  power,  primarily  lodged  with 
the  President,  was  shared  with  the  Senate  in  its  execution.  In  the  Borden 
case  (supra,  p.  380),  th»  power,  primarily  lodged  in  the  Congress,  is  dele- 
gated to  the  President,  who  becomes  the  agent  of  the  Congress  in  deciding 
the  facts  which  justify  intervention  on  behalf  of  the  Government  of  the 
Union.  In  the  Suffolk  Ins.  Co.  Case  (supra,  p.  378),  the  power  pertained  to 
the  President,  as  in  the  Prize  Cases  (2  Black,  635).  decided  by  the  Supreme 
Court  in  1862. 

The  facts  in  these  cases  are  peculiarly  American,  and  the  case  has  an 
interest  of  its  own  far  exceeding  that  of  Luther  v.  Borden.  The  States  of 
the  Union  were  at  war.  The  ports  of  the  Southern  States  had  been  blockaded 
by  Mr.  Lincoln,  then  President  of  the  United  States.  If  the  blockade  was 
legal,  that  is  to  say,  if  the  President  had  the  right  to  close  the  ports  of  the 
Southern  States  by  blockade  without  an  act  of  Congress  declaring  war,  then 
certain  vessels,  violating  this  blockade,  could  be  properly  seized  and  confis- 
cated; whereas,  if  a  declaration  of  war  by  Congress  was  necessary,  the 
proclamation  would  have  been  without  binding  effect,  inasmuch  as  a  blockade 
presupposes  the  existence  of  a  state  of  war.  The  question,  therefore,  before 
the  court  was,  as  stated  by  Mr.  Justice  Grier,  who  delivered  its  opinion : 

Had  the  President  a  right  to  institute  a  blockade  of  ports  in  possession  of 
persons  in  armed  rebellion  against  the  Government,  on  the  principles  of 
international  law,  as  known  and  acknowledged  among  civilized  States  ? ' 

It  is  to  be  observed  that,  by  the  Constitution,  the  law  of  nations  is  recognized 
and  that,  by  repeated  decisions  of  the  Supreme  Court,  it  is  declared  to  be 
a  part  of  the  law  of  the  land.  By  the  law  of  nations,  a  proclamation  of 
blockade  recognizes  the  existence  of  w„r  and  confers  upon  the  parties  to  it 
both  the  rights  and  duties  of  belligerents  in  a  war  between  nations.  On  the 
very  point  in  question,  Mr.  Justice  Grier  said : 

Whether  the  Pr'rident  in  fulfilling  his  duties,  as  Commander-in-chief, 
in  suppressing  an  ins  rection,  has  met  with  such  armed  hostile  resistance, 
and  a  civil  war  of  sucn  alarming  proportions  as  will  compel  him  to  accord 


'  7  Howard,  46-7. 

•  Thi  Prise  Cases.  2  Black,  665. 


'i 


POWERS  OF  THE  SUPREME  COURT 


383 


to  them  the  character  of  belligerents,  is  a  question  to  be  decided  by  him, 
and  this  Court  must  be  governed  by  the  decisions  and  acts  of  the  political 
department  of  the  Government  to  which  this  power  was  entrusted.  "  He 
must  determine  what  degree  of  force  the  crisis  demands."  The  proclamation 
of  blockade  is  itself  official  and  conclusive  evidence  to  the  Court  that  a  state 
of  war  existed  which  demanded  and  authorized  a  recourse  to  such  a  measure, 
under  the  circumstances  peculiar  to  the  case.' 

I*,  however,  the  action  of  Congress  was  necessary  in  the  case  of  a  Civil 
War,  which  could  not  be  declared  as  in  the  case  of  a  war  against  a  foreign 
nation,  the  learned  Justice  considered  the  acts  of  Congress  relating  to  the 
war  as  a  sufficient  declaration  of  its  existence.  Speaking  on  behalf  of  the 
majority,  he  considered  the  act  of  Congress  of  1861,  "  approving,  legalizing, 
and  making  valid  all  the  acts,  proclamations,  and  orders  of  the  President,  &c., 
as  if  they  had  been  issued  and  done  under  the  previous  express  authority  and 
direction  of  the  Congress  of  the  United  States,"  as  a  ratification  of  the  act 
of  the  President,  if  indeed  one  were  needed.  In  this  part  of  his  opinion  he 
relied  upon  the  following  statement  of  Mr.  Justice  Story  in  the  case  of 
Brown  v.  United  States  decided  in  1814  (8  Cranch,  133)  : 

I  am  perfectly  satisfied that  no  subject  can  legally  commit 

hostilities,  or  capture  property  of  an  enemy,   when    .    .    .    the  sovereign 

has  prohibited  it.     But  suppose,  he  docs,   I   would  ask.  if  the 

sovereign  may  not  ratify  his  proceedings;  and  thus,  by  a  retroactive  opera- 
tion, give  validity  to  them? 

The  court  therefore  concluded,  in  the  language  of  Mr.  Justice  Grier : 

On  this  first  question  therefore  we  are  of  the  opinion  that  the  Presi- 
dent had  a  right,  jure  jclli,  to  institute  a  blockade  of  ports  in  possession  of 
the  States  in  rebellion,  which  neutrals  are  bound  to  regard* 

Further  light  is  thrown  upon  this  subject  by  three  cases,  in  two  of  which 
the  President  of  the  United  States  is  concerned;  in  the  last,  a  State  of  the 
Union,  in  each  of  which  the  court  refused  to  accept  jurisdiction  because  the 
questions  were  pcjlitical,  and  as  such,  beyond  the  scope  of  judicial  power. 

In  State  of  Mississippi  v.  Johnson.  (4  Wallact,  475),  decided  in  1866, 
Mr.  Chief  Justice  Chase  delivering  the  unanimous  opinion  of  the  court,  stated 
the  facts  as  follows : 


A  motion  was  made,  some  days  since,  in  behalf  of  the  State  of  Mis- 
sissippi, for  leave  to  tile  a  bill  in  the  name  of  the  State,  praying  this  court 
perpetually  to  enjoin  and  restrain  Andrew  Johnson,  President  of  the  United 

'  Ibid.,  670. 
•  Ibid.,  671. 


384 


THE   UNITED  STATES:   A  STUDY   IN   INTERNATIONAL  ORGANIZATION 


States,  and  E.  O.  C.  Ord,  general  commanding  in  the  District  of  Mississippi 
and  Arkansas,  from  executing,  or  in  any  manner  carrying  out,  certain  acts  of 
Congress  therein  named. 

The  acts  referred  to  are  those  of  March  2d  and  March  23d,  1867,  com- 
monly known  as  the  Reconstruction  Acts. 

The  Attornry-Gencral  ohjected  to  the  leave  asked  for,  upon  the  ground 
that  no  bill  which  makes  a  President  a  defendant,  and  seeks  an  injunction 
against  him  to  restrain  the  performance  of  his  duties  as  President,  should 
be  allowed  to  be  tiled  in  this  court.* 

The  case  was  elaborately  argued  by  counsel  for  Mississippi  and  by  the 
Attorney  Gineral  on  behalf  of  the  President,  the  counsel  for  Mississippi 
maintaining  that  the  duty  cast  upon  the  President  by  the  Acts  in  question 
was  ministerial  and  that  the  performance  of  a  ministerial  act  could  be  com- 
pelled by  mandamus  or  enjoined  by  injunction. 

The  case,  as  considered  by  the  court  was,  as  stated  by  the  Chief  Jus- 
tice, "  Can  the  President  be  restrained  by  injunction  from  carrying  into 
effect  an  act  of  Congress  alleged  to  be  unconstitutional?" 

The  Chief  Justice  first  defined  a  ministerial  duty,  then  invoked  adjudged 
cases  in  support  of  the  definition,  and  finally  distinguished  the  duty  imposed 
upon  the  President  by  the  Statute  which,  in  his  opinion  and  in  the  opinion 
of  the  court,  required  not  merely  discretion,  but  discretion  of  the  highest  pos- 
sible degree.    Thus : 

A  ministerial  duty,  the  performance  of  which  may,  in  proper  cases,  be 
required  of  the  head  of  a  department,  by  judicial  process,  is  one  in  respect 
to  which  nothing  is  left  to  discretion.  It  is  a  simple,  definite  duty,  arising 
under  conditions  admitted  or  proved  to  exist,  and  imposed  by  law. 

For  this  he  vouched,  in  first  instance,  the  case  of  Marbury  v.  Madison,  (1 
Cranch,  137)  of  which  he  said: 

A  citizen  had  been  nominated,  confirmed,  and  appointed  a  justice  of  the 
peace  for  the  District  of  Columbia,  and  his  commission  h.id  been  made  out, 
signed,  and  sealed.  Nothing  remained  to  be  done  except  delivery,  and  the 
duty  of  delivery  was  imposed  by  law  on  the  Secretary  of  State.  It  was  held 
that  the  performance  of  this  duty  might  be  enforced  by  mandamus  issuing 
from  a  court  having  jurisdiction.^ 


And  in  the  second,  the  case  of  Kendal,  Postmaster-General  v.  Stockton  & 
Stokes,  (12  Peters,  527),  the  Chief  Justice  said: 

An  act  of  Congress  had  directed  the  Postmaster-General  to  credit  Stock- 
ton &  Stokes  with  such  .sums  as  the  Solicitor  of  the  Treasury  should  find 
due  to  them;  and  that  officer  refused  to  credit  them  with  certain  sums,  so 

'  4  Wallace,  497-8. 
"  Ibid..  498. 


POWERS  OF  THE   SUPREME  COURT 


385 


found  due.    It  was  held  that  the  crediting  of  this  money  was  a  mere  minis- 
terial duty,  the  performance  of  which  might  be  judicially  enforced.' 

After  stating  that  in  each  of  these  ca.ses  nothing  was  left  to  discretion,  that 
there  was  no  room  for  the  exercise  of  judgment,  and  that  the  law  required 
the  performance  of  a  single  specific  act  rightly  compellable  by  mandamus, 
the  Chief  Justice  thus  distinguished  the  case  before  him: 

Very  diflFerent  is  the  duty  of  the  President  in  the  exercise  of  the  power 
to  see  that  the  laws  are  faithfully  executed,  and  among  these  laws  the  acts 
named  in  the  bill.  By  the  first  of  these  acts  he  is  required  to  assign  gen- 
erals to  command  in  the  several  militai^  districts,  and  to  detail  sufficient 
military  force  to  enable  such  officers  to  discharge  their  duties  under  the  law. 
By  the  supplementary  act,  other  duties  are  imposed  on  the  several  com- 
manding generals,  and  these  duties  must  necessarily  be  performed  under 
the  supervision  of  the  President  as  commander-in-chief.  The  duty  thus 
imposed  on  the  President  is  in  no  just  sense  ministerial.  It  is  purely  execu- 
tive and  political. 

An  attempt  on  the  part  of  the  judicial  department  of  the  government  to 
enforce  the  performance  of  such  duties  by  the  President  might  be  justly 
characterized,  in  the  language  of  Chief  Justice  Marshall,  as  "  an  absurd  and 
excessive  extravagance." 

It  is  true  that  in  the  instance  before  us  the  interposition  of  the  court  is 
not  sought  to  enforce  action  by  the  Executive  under  constitutional  legis- 
lation, but  to  restrain  such  action  under  legislation  alleged  to  be  unconstitu- 
tional. But  we  are  unable  to  perceive  that  this  circumstance  takes  the  case 
out  of  the  general  principles  which  forbid  judicial  interference  with  the 
exercise  of  Executive  discretion. 

After  declaring  that  the  Congress  is  the  Legislative  Department  of  the  Gov- 
ernment, that  the  President  is  the  Executive  Department,  that: 

Neither  can  be  restrained  in  its  action  by  the  judicial  department :  though 
the  acts  of  both,  when  performed,  are,  in  proper  cases,  subject  to  its 
cognizance. 

The  Chief  Justice  thus  stated  the  reason  obtaining  in  this  category  of  cases: 

The  impropriety  of  such  interference  will  be  clearly  seen  upon  considera- 
tion of  its  possible  consequences. 

Suppose  the  bill  filed  and  the  injunction  prayed  for  allowed.  If  the 
President  refuse  obedience,  it  is  needless  to  observe  that  the  court  is  with- 
out power  to  enforce  its  process.  If,  on  the  other  hand,  the  President  com- 
plies with  the  order  of  the  court  and  refuses  to  execute  the  acts  of  Con- 
gress, is  it  not  clear  that  a  collision  may  occur  between  the  executive  and 
legislative  departments  of  the  government?  May  not  the  I  ,,ase  of  Repre- 
sentatives impeach  the  President  for  such  refusal?  And  in  that  case  could 
this  court  interfere,  in  behalf  of  the  President,  thus  endangered  by  com- 

•  /fctrf.,  4QQ 


Ml 


41 


386         THE  VNITED  STATU:  A  STUDY  IN   INTCINATIONAL  OBGAMZATION 

pliance  with  its  mandate,  and  restrain  by  injunction  the  Senate  of  the  United 
States  from  sitting  as  a  court  of  impeachment?  Would  the  strange  spec- 
tacle be  offered  to  the  pubhc  world  of  an  attempt  by  this  court  to  arrest 
proceedings  in  that  court? 

These  questions  answer  themselves.* 

The  State  of  Georgia  presented  practically  the  same  question  in  a  dif- 
ferent form.  If  the  President  of  the  United  States  might  not  be  enjoined 
why  not  the  Secretary  of  W'ar  and  the  Commanding  Officers  of  the  Army 
from  carrying  into  effect  the  provisions  of  the  Reconstruction  Acts?  This 
counsel  for  Georgia  attempted  to  do  in  the  State  of  Georgia  v.  Stanton,  (6 
Wallace,  50),  decided  in  the  December  term,  1867,  adverse  to  the  contention 
of  Georgia,  and  in  accordance  with  the  opinion  of  the  Court  in  the  case  of 
Mississif>pi  v.  Johnson. 

Mr.  Justice  Nelson  who  delivered  the  opinion  of  the  court  first  noted  the 
objection  that  the  questions  presented  for  adjudication  were  "  political  and 
not  judicial,  and  therefore,  not  the  subject  of  judicial  cognizance  " ;  he  next 
adverted  to  the  importance  of  the  objection,  and  continued : 

This  distinction  results  from  the  organization  of  the  government  into  the 
three  great  departments,  executive,  legislative,  and  judicial,  and  from  the 
assignment  and  limitation  of  the  powers  of  each  by  th.p  Constitution. 

The  judicial  power  is  vested  in  one  supreme  court,  and  in  such  inferior 
courts  as  Congress  may  ordain  and  establish:  the  political  power  of  the 
government  in  the  other  two  departments. 

The  distinction  between  judicial  and  political  power  is  so  generally  ac- 
knowledged in  the  jurisprudence  Iwth  of  England  and  of  this  country,  that 
we  need  do  no  more  than  refer  to  some  of  the  authorities  on  the  subject. 
They  are  all  in  one  direction.  {Nabob  of  Carnatic  v.  The  East  India  Co., 
1  Vesey.  Jr.,  375-39.^,  S.  C,  2  Id.  56-60:  Penn  v.  Lord  Baltimore.  1  Vcsey, 
446-7;  Ne7v  York  v.  Connecticut.  4  Dallas,  4-6;  The  Cherokee  Nation  v. 
Ge.rgia.  5  Peters,  1.  20.  20.  30.  51.  75;  The  State  of  Rhode  Island  v.  The 
State  of  Massachusetts,  12  lb..  657,  733,  734,  737,  738.)' 

He  then  took  up  The  State  of  Rhode  Island  v.  The  State  of  Massachusetts, 
which  wa?  regarded  by  counsel  as  an  exception,  and  by  an  examination  of 
the  opinion  of  Mr.  Justice  Baldwin  in  that  case,  showed  that  the  question 
was  judicial  in  its  nature,  and  that  it  was  only  political  in  the  sense  that  the 
decision  of  the  boundary  between  the  two  States  involved  sovereignty  and 
political  rights  as  incident  to  the  ownership  of  the  land.  He  quoted  with 
approval  the  following  statement  from  Mr.  Justice  Baldwin's  opinion : 

Taking  the  case  on  the  bill  and  pie  ,  the  question  is,  whether  the  stD  e 
set  up  on  Wrenthani  Plain  by  Woodward  and  Saffrey.  in  1842,  is  the  true 
point  from  which  to  run  an  east  and  wcsi  line  as  the  compact  boundary 

•4  Wallace,  500-1. 
•  6  Wallace,  71. 


POWERS  OP  THE   SUPREME  COURT 


387 


between  the  States.  In  the  first  aspect  of  the  case  it  depends  on  a  fact;  in 
the  second,  on  the  law  of  equity,  whether  the  agreement  is  void  or  valid; 
neither  of  which  present  a  political  controversy,  but  one  of  an  ordinary 
judicial  nature  of  frequent  occurrence  in  suits  between  individuals.' 

Having  thus  shown  that  a  political  question  was  not  involved  in  Rhode 
Island  V.  Massachusetts,  and  that  the  court  did  not  overstep  the  line  sepa- 
rating the  judicial  from  the  political  departments  of  the  Government,  Mr. 
Justice  Nelson  proceeded  to  quote,  with  the  approval  of  the  court,  the  por- 
tion of  Mr.  Justice  Baldwin's  opinion  in  which  that  learned  Justice  laid  down 
in  clear,  precise,  and  unassailable  terms,  the  distinction  between  judicial  and 
political  power : 

From  the  time  of  such  submission  the  question  ceases  to  be  a  political 
one,  to  be  decided  by  the  sic  vulo,  sic  jubeo,  of  political  power.  It  comes 
to  the  court  to  be  decided  by  its  judgment,  legal  discretion,  and  solemn 
consideration  of  the  rules  of  law,  appropriate  to  its  nature  as  a  judicial 
question,  depending  on  the  exercise  of  judicial  powers,  as  it  is  bound  to  act 
by  known  and  settled  principles  of  national  or  municipal  jurisprudence,  as 
the  case  requires.' 

And  in  commenting  upon  this  passage,  he  said  : 

that  the  question  thus  submitted  by  the  sovereign,  or  state,  to  a  judicial 
determination,  must  be  one  appropriate  for  the  exercise  of  judicial  power; 
such  as  a  question  of  boundary,  or  as  in  the  case  of  Penn  v  Lord  Baltimore, 
a  contract  between  the  parties  in  respect  to  their  boundary.  F-ord  Hard- 
wicl-  places  his  right  in  that  case  to  entertain  jurisdiction  upon  this  ground.* 

Mr.  Justice  Nelson,  and  the  Court  for  which  he  spoke,  considered  as 
more,  and  indeed  most  in  point,  the  case  of  The  Cherokee  Xation  v.  The  State 
of  Georgia,  (5  Peters,  1),  decided  in  1831,  seven  years  previous  to  that  of 
Rhode  Island  v.  Massoihusrtts.  In  that  case,  the  Cherokee  Nation  then  re- 
siding within  the  limits  of  Georgia  prayed  the  Supreme  Court  that  that  State 
be  enjoined  from  extending  its  laws  over  the  Cherokee  Nation  whose  exist- 
ence as  a  separate  and  distinct  political  community  had  been  recognized  by 
the  United  States.  The  Court  dismissed  the  hill  on  the  ground  that  the  Su- 
preme Court  could  not  take  original  jtii  iiction  of  the  case  because  the 
Cherokee  Nation  was  neither  a  foreign  State  nor  a  member  of  the  .American 
Union,  but  a  dependent  domestic  State  which  did  not  therefore  have  the 
right  to  file  an  original  bill  in  the  Supreme  Court,  as  a  foreign  nation  or 
State  of  the  .American  Union  possessed  under  the  Constitution.  There  was, 
however,  an  added  reason  in  the  opinion  of  the  majority  of  the  Court  why 

*  rbid..  72. 

'  Ibxd. 

*  /Wd.,  73. 


'uJ 


388 


THE   UNITED  STATES:   A  8TVDY   IN    INTEKNATIONAL  OICANIZATION 


jurisdiction  should  not  be  asumed  even  if  the  Cherokee  Nation  could  file  its 
bill,  which  was  thus  sUted  by  Mr.  Chief  Justice  Marshall: 


That  the  part  of  the  bill  which  respects  the  land  occupied  by  the  Indians, 
and  prays  the  aid  of  the  court  to  protect  their  possessions,  may  be  more 
doubtful.  The  mere  question  of  right  might,  perhaps,  !«  decided  by  this 
court  in  a  proper  case  with  proper  parties  Hut  the  court  is  asked  to  do 
more  than  decide  on  the  title.  The  bill  requires  us  to  control  the  legislature 
of  Georgia,  and  to  restrain  the  exertions  of  its  physical  force.  The  propriety 
of  such  an  interposition  by  the  court  may  be  well  questioned.  It  savors  too 
much  of  the  exercise  of  political  power,  to  be  within  the  province  of  the 
judicial  department.' 

A  concurring  opinion  was  delivered  by  Mr.  Justice  Johnson,  in  which  he 
doubted  the  propriety  of  considering  the  Cherokee  Nation  even  as  a  domestic 
State,  and  an  opinion  by  Mr.  Justice  Baldwin  denying  to  them  that  equality. 

A  very  elaborate  dissenting  opinion,  delivered  by  Mr.  Justice  Thompson, 
in  which  Mr.  Justice  Story  concurred,  held  that  the  Cherokee  Nation  was  a 
nation  in  the  sense  of  the  Constitution  and  that  the  Court  could  take  juris- 
diction of  the  bill  in  so  far  as  the  parties  to  the  controversy  were  concerned, 
but  admitted  that  the  remedy  could  only  be  granted  in  part,  as  the  question 
was  largely  political.    On  this  point,  Mr.  Justice  Thompson  said : 

For  the  purpose  of  guarding  against  any  erroneous  conclusions,  it  is 
proper  I  should  state,  that  1  do  not  claim  for  this  court,  the  exercise  of 
jurisdiction  upon  any  matter  properly  falling  under  the  denomination  of 
political  power.  Relief  to  the  full  extent  prayed  for  by  the  bill  may  be  l)e- 
yond  the  reach  of  this  court.  Much  of  the  matters  ii»rein  contained  by 
way  of  complaint,  would  seem  to  depend  for  relief  upon  the  exercise  of 
political  power;  and,  as  such,  appropriately  devolving  ufon  the  executive, 
and  not  the  judicial  department  of  the  government.  This  court  can  grant 
relief  so  far,  only,  as  the  rights  of  persons  or  properly  are  drawn  in  ques- 
tion, and  have  been  infringed.' 


This  and  the  following  portion  of  his  opinion  in  that  case  are  quoted  by  Mr. 
Justice  Nelson  on  behalf  of  the  Court : 

I  certainly  do  not  claim,  as  belonging  to  the  judiciary,  the  exercise  of 
political  power  That  belongs  to  another  branch  of  the  Government.  The 
protection  and  enforcement  of  many  rights  secured  by  treaties,  most  cer- 
tainly do  not  belong  to  the  judiciary.  It  is  only  where  the  rights  of  persons 
or  property  are  involved,  and  when  such  rights  can  be  presented  under  some 
judicial  form  of  proceedings,  that  courts  of  justice  can  interpose  relief. 
This  court  can  have  no  right  to  pronounce  an  abstract  opinion  upon  the 
constitutionality  of  a  State  law.    Such  law  must  be  brought  into  actual,  or 

•  6  Walhfr,  74. 
■  Ibid..  74-5. 


rOWEU  OP  THE  SUPREME  COURT 


389 


threatened  operation  upon  rights  pr'ipc-riy  falling  under  judicial  cognizance, 
or  a  remedy  is  not  to  w  had  here.' 

Mr.  Justice  Nelson  thereupon  stated  that  by  the  bill  the  Court  is: 

called  upon  to  restrain  the  defendants,  who  represent  the  executive  au- 
thority of  the  government,  from  carrying  into  cxcctuion  certain  acts  of 
Congress,  inasmuch  as  such  execuimn  would  annul,  and  totally  alK)lish  the 
existing  State  government  of  Gcorf;ia.  and  establish  another  and  different 
one  in  its  place;  in  other  words,  would  overthrow  and  destroy  the  corporate 
existence  (jf  the  State,  by  depriving  it  of  all  the  means  and  instrumentalities 
whereby  its  existence  might,  and,  otherwise  would,  be  maintained.' 

Testing  the  prayer  of  the  bill  by  the  principles  laid  down  in  the  previous 
cases,  Mr.  Justice  Nelson  thus  continued  and  concluded: 

That  these  matters,  both  as  stated  in  the  body  of  the  bill,  and,  in  the 
prayers  for  relief,  call  for  the  judgment  of  the  court  upon  political  ques- 
ions,  and,  up<m  rights,  not  of  persons  or  property,  but  of  a  political  char- 
acter, will  hardly  be  denied.  For  the  rights  for  the  protection  of  which  our 
authority  is  invoked,  are  the  rights  of  sovereignty,  of  political  Jurisiliction, 
of  government,  of  corporate  existence  as  a  State,  with  all  its  constitutional 
powers  and  privileges.  No  case  of  private  riglits  or  private  property  in- 
fringed, or  in  danger  of  actual  or  threatened  infringement,  is  presented  by 
the  bill,  in  a  judicial  form,  for  the  judgment  of  the  court. 

It  is'  true,  the  bill,  in  setting  forth  the  political  rights  of  the  State,  and 
of  its  people  to  be  protected,  among  other  matters,  avers,  that  (icorgia  owns 
certain  real  estate  and  buildings  therein,  State  capitol,  an<l  executive  man- 
sion, and  other  real  and  personal  property;  and  tiiat  putting  the  acts  of 
Congress  into  execution,  and  destroying  the  State,  would  deprive  it  of  the 
possession  and  enjoyment  of  its  property.  Hut,  it  is  apparent,  that  this 
reference  to  property  and  statement  concerning  it,  are  only  by  way  of  show- 
ing one  of  the  grievances  resulting  from  the  threatened  destruction  of  the 
State,  and  in  aggravation  of  it,  not  as  a  specific  ground  of  relief.  This 
matter  of  property  is  neither  stated  as  an  independent  ground  nor  is  it 
noticed  at  all  in  the  prayers  for  relief.  Indeed  the  case,  as  ..lade  in  the 
bill,  would  have  stopped  far  shoit  of  the  relief  sought  by  the  State,  and  its 
main  purpose  and  design  given  up,  by  restraining  its  remedial  effect,  simply 
to  the  protection  of  the  title  and  possession  of  its  property.  Such  relief 
would  have  called  for  a  very  different  bill  from  the  one  before  us. 

Having  arrived  at  the  conclusion  that  this  court,  for  the  reasons  above 
stated,  possesses  no  jurisdiction  over  the  subject-matter  presented  in  the 
bill  for  relief,  it  is  unimportant  to  examine  the  question  as  it  respects 
jurisdiction  over  the  parties  defendants.* 

In  the  very  recent  case  of  Pacific  Telephone  Company  v.  Oregon,  (223 
U.  S.,  118)  decided  in  1912,  a  political  question  was  again  before  the  Su- 
preme Court,  in  what  may  be  considered  a  leading  case,  and  the  opinion  of 

•  Ibid..  7S. 
■  Ibid..  76. 

*  Jbid..  n. 


390 


THE  UNITtO  ITATtS:  A  tTlTDY  IN   INTUN\TIONAL  OIGANUATION 


««M. 


Mr.  Chief  Justice  White,  for  a  unanimous  court,  is  a  careful  analysis  of 
the  elements  which  in  that  case  formed  the  political  question,  because  of 
which  the  court  refused  to  entertain  jurisdiction. 

The  facts  in  the  case  were,  in  so  far  as  they  are  material  to  the  present 
purpose,  that  the  State  of  Oregon,  in  1902,  amended  its  Constitution,  intro- 
ducing what  is  called  the  Initiative  and  Referendum. 

"  As  to  the  first,"  to  quote  the  language  of  Chief  Justice  White  in  deliver- 
ing the  opinion  of  the  Court,  "  the  initiative,  it  suffices  to  say  that  a  state4 
number  of  voters  were  given  the  right  at  any  time  to  secure  a  ibmission  to 
popular  vote  for  approval  of  any  matter  which  it  was  desired  lave  enacted 
into  law.  and  providing  that  the  proposition  thus  submitted  when  approved 
by  popular  vote  should  become  the  law  of  the  State.  The  second,  the  referen- 
dum, providetl  for  a  reference  to  a  popular  vote,  for  approval  or  disapproval, 
of  any  law  passed  by  the  legislature,  such  reference  to  take  place  either  as  the 
result  of  the  action  of  the  legislature  itself  or  of  a  petition  filed  for  that  pur- 
pose by  a  specified  numlier  of  voters."  '  That  is  to  say,  the  Initiative  pro- 
vided for  direct  legislation  by  the  people,  instead  of  by  a  select  Ixuly  of  per- 
sons represent'iig  the  people  in  the  State  Legislature,  and  the  Referendum 
for  a  direct  and  specific  confirmation  or  rejection  by  the  people  of  acts  of  the 
Legislature,  instead  of  the  approval  disapproval  of  its  measures  by  the 
slower  process  of  defeating  or  reelect. iig  memliers  of  the  Legislature,  whose 
cond'ict  the  people  condemned  or  commendetl. 

By  resorting  to  the  Initiative  a  law  was  sulmiitted  to  and  voted  by  the 
people  in  1903,  laxing  certain  classes  of  corporations  'y  !  tti-i  of  vliirh 
telephone  and  telegraph  companies  were  taxed  two  per  centum  as  an  annual 
license,  upon  their  gross  revenue  derived  from  business  done  within  the 
State;  and  penalties  were  provided  for  non-payment  in  case  of  delinquency. 

The  Pacific  Telephone  and  Telegraph  Company,  an  Oregon  corporation 
engaged  in  business  in  that  State,  made  return  of  its  gross  receipts  as  required 
by  the  law,  and  was  as:."sed  two  per  centum  upon  the  amount  thereof. 
L'pon  failure  to  pay  the  tax.  suit  was  brought  by  the  State,  to  enforce  payment 
and  to  recover  the  statutory  penalties  for  delinquency. 

The  Company  pleaded  among  other  defenses,  that  government  by  Initia- 
tive and  Referendum  was  not  the  Republican  form  of  government  under  the 
Constitution,  and  that  it  was  in  conflict  with  the  fourth  section  of  Article 
IV  thereof,  providing  that.  "  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government." 

Inasmuch  as  the  legality  of  the  Initiative  and  Referendum  was  the  basis 
of  the  defense,  the  case  reduced  itself,  to  quote  the  language  of  the  Chief 
Justice : 


'223  U.  S.,  134. 


roi«rKM  or  the  supmme  couit 


m 


to  thf  tinRlf  is»ue  whether  the  enforcement  ol  that  provi»ion,  becauw  of 
its  political  character,  is  exclusively  cuniniittcd  to  Congrets  or  it  judicial  in 
its  character.' 

After  calling  attention  to  the  fact  that  the  defense,  if  admitted,  would 
not  only  affect  the  preMnt  Statute,  but  every  other  passed  "  in  Oregon  since 
the  adoption  of  the  initiative  and  referendum,"  tlie  Chief  Justice  proceeded 
thus  to  examine  the  nature  and  the  consequence  uf  defendant's  contention  : 


Let  us  brielly  fix  the  mconceivable  expansion  of  the  judicial  power  and 
the  ruinous  destruction  of  legislative  authority  in  matters  purely  political 
which  would  necessarily  \h-  occasioned  hy  Riving  sanction  to  the  doctrine 
which  underlies  and  would  be  necessarily  involved  in  sustaining  the  proposi- 
tions contended  for.  I'"irst.  That  however  jn-rfect  and  absolute  may  be 
the  establishment  and  dominion  in  fact  of  a  stale  Koverntncnt,  however  com- 
plete m.iy  lie  its  participation  in  and  enjoyment  of  all  its  powers  and  rights  as 
a  memlwr  of  the  national  Government,  and  however  all  the  departments  of 
that  (iovernment  may  recognize  such  state  government,  nevertheless  every 
citizen  of  such  State  or  person  subject  to  taxation  therein,  or  o^vin^•  any 
duty  to  the  established  government,  may  be  heard,  for  the  purjiosc  of 
defeating  the  payment  of  such  taxeii  or  avoiding  the  discharge  of  such  <luty, 
to  assail  in  a  court  of  justice  the  rightful  existence  of  the  St.nte  Second. 
As  a  result,  it  becomes  the  duty  of  the  courts  of  the  I'nitcd  States,  where 
such  a  claim  is  made,  to  examine  as  a  justiciable  issue  the  contention  as  to 
the  ilUgal  existence  of  a  State  and  if  such  contention  Ik-  thought  «  II  founded 
to  disregard  the  existence  in  fact  of  the  State,  of  its  recognition  by  all  the 
departments  of  the  Federal  Ciovernnient,  and  practically  award  a  decree 
absolving  from  all  obligation  to  contribute  to  the  support  of  or  obey  the 
laws  of  such  established  state  government.  And  as  a  consequence  of  the 
e.xistence  of  such  judicial  an'bdrity  a  power  in  the  judiciary  must  U-  im- 
plied, unless  it  Ik-  tliM  .marcby  is  to  n.Mie,  to  build  by  judicial  action  upon 
the  ruins  of  the  prcvicm^lv  established  governimnt  a  new  one,  a  riijtit  which 
by  its  very  terms  also  implies  the  power  to  control  the  legislative  department 
of  the  (iovernment  of  the  United  States  in  the  recognition  of  such  new  gov- 
ernment and  the  admission  of  representatives  therefroiii.  as  well  as  to  strip 
the  executive  department  of  that  government  of  its  otherwise  lawful  and 
discretionary  authority." 

Still   further  pursuing  this  phase  of  the  subject  the  Chief  Justice  con- 
tinued : 

Do  the  provisions  of  §  4,  Art.  IV,  bring  about  these  strange,  far-reaching 
and  injurious  results?  That  is  to  say,  do  the  provisions  of  that  .\rticle 
obliterate  the  division  between  judicial  authority  and  legislative  power  upon 
which  the  Constitution  rests?  In  other  words,  do  they  authorize  the  judiciary 
to  substitute  its  judsjment  as  to  a  matter  purely  political  for  the  jiidtinient 
of  Congress  on  a  subject  committed  to  it  and  thus  overthrow  the  Constitu- 

'  [bid..  137 
'Ibid..  141-2. 


392 


THE  UNITED  STATES:  A   STUDY   IN   INTERNATIONAL  ORGANIZATION 


tion  upon  the  ground  that  thereby  the  guarantee  to  the  States  of  a  govern- 
ment republican  in  form  may  be  secured,  a  conception  which  after  all  rests 
upon  the  assumption  that  the  States  are  to  be  guaranteed  a  government 
republican  in  form  by  destroying  the  very  existence  of  a  government  repub- 
lican in  form  in  the  Nation. 


##i^ 


To  state  such  consequences  would  seem  to  refute  the  premises  upon  which 
they  were  based,  and  from  which  they  were  drawn;  and  it  was  not  necessary 
for  the  Chief  Justice  to  answer  theoretical  arguments  which  had  been  re- 
jected in  the  great  and  leading  case  of  Luther  v.  Borden,  (7  Howard,  1), 
decided  in  1849,  in  which  the  question  involved  in  the  guarantee  of  republican 
government  was  conclusively  shown  to  be  political,  not  judicial.  After  an 
elaborate  statement  of  the  facts  involved  in  the  case,  Mr.  Chief  Justice 
\\  hite  quoted  with  approval  the  following  language  of  Chief  Justice  Taney, 
in  that  case: 

Under  this  article  of  the  constitution  it  rests  with  congress  to  decide  what 
government  is  the  established  one  in  a  State.  For,  as  the  United  States 
guarantee  to  each  State  a  republican  government,  congress  must  necessarily 
decide  what  government  is  established  in  the  State  before  it  can  determine 
whether  it  is  republican  or  not.  And  when  the  senators  and  representatives 
of  a  State  are  admitted  into  the  councils  of  the  Union,  the  authority  of  the 
government  under  which  they  are  appointed,  as  well  as  its  republican  char- 
acter, is  recognized  by  the  proper  constitutional  authority.  And  its  decision 
is  bindin-;  on  every  other  department  of  the  government,  and  could  not  be 
questioned  in  a  judicial  tribunal.  It  is  true  that  the  contest  in  this  case 
did  not  last  long  enough  to  bring  the  matter  to  this  issue;  and  as  no  sena- 
tors or  representatives  were  elected  under  the  authority  of  the  government 
of  which  Mr  Dorr  was  the  head.  Congress  was  not  called  upon  to  decide  the 
controversy.    Yet  the  right  to  decide  is  placed  there,  and  not  in  the  courts.' 

Stating  in  agreement  with  Mr.  Chief  Justice  Taney,  that  if  the  judicial 
power  e.xtended  thus  far  it  is  "  a  guarantee  of  anarchy,  and  not  ^f  order." 
Mr.  Chief  Justice  White  thus  concluded  the  opinion  of  the  Court,  which 
can  well  be  taken  as  the  last  word  on  this  difficult  and  perplerting  sub- 
ject: 

It  is  indeed  a  singular  misconception  of  the  nature  and  character  of  our 
constitutional  system  of  government  to  suggest  that  the  settled  distinction 
which  the  doctrine  just  stated  points  out  between  judicial  authority  over 
justiciable  controversies  and  legislative  power  as  to  purely  political  ques- 
tions tends  to  destroy  the  duty  of  the  judiciary  in  proper  cases  to  enforce 
the  Constitution.  The  suggestion  but  results  from  failing  to  distinguish 
between  things  which  are  widely  different,  that  is.  the  legislative  duty  to 
determine  the  political  questions  involved  in  deciding  whether  a  state  gov- 
ernment republican  in  form  exists,  and  the  judicial  power  ^nd  ever-present 
duty  whenever  it  becomes  necessary  in  a  controversy  pr'      .iy  submitted  to 

'223  IT   s..  147. 


POWERS  OF  THE   SUPREME  COURT 


393 


opportunii 
there  was 
which  vioi, 
raised  thej 
the  calling 


enforce  and  uphold  the  applicable  provisions  of  the  Constitution  as  to  each 
and  every  excicise  of  governmental  power. 

How  better  can  the  broad  lines  which  distinguish  these  two  subjects  be 
pointed  out  than  by  considering  the  character  of  the  defense  in  this  very 
case?  Ihe  deii',"^:nt  company  does  not  contend  liere  that  it  could  not  have 
been  requi-  1  lo  ; -iv  a  iicnse  tax.  It  does  not  assert  that  it  was  denied  an 
•10  It'  iR-.ir.J  .1..  .  1  the  amount  lor  which  it  was  taxed,  or  that 
rivi'i;ng  iiihcrir''  m  the  tax  or  involved  intrinsically  in  'he  law 
'  ,inv  '.if  i.i  I  •  istitutional  rights.  If  such  questions  had  been 
lid  have  bc'.ii  justiciable,  and  therefore  would  have  required 
into  opeiut.j*^  of  judicial  power.  Instead,  however,  of  doing 
any  of  these  things,  the  attack  on  the  statute  here  made  is  of  a  wholly  dif- 
ferent character.  Its  essentially  political  nature  is  at  once  made  manifest  by 
understanding  that  the  assault  which  the  contention  here  advanced  makes  it 
not  on  the  tax  as  a  tax.  but  on  the  State  as  a  State.  It  is  addressed  to  the 
framework  and  political  character  of  the  government  by  which  the  statute 
levying  the  tax  was  passed  It  is  the  government,  the  political  entity,  which 
(reducing  the  case  to  its  essence)  is  called  to  the  bar  of  this  court,  not  for 
the  purpose  of  testing  judicially  some  exercise  of  power  assailed,  on  the 
ground  that  its  exertion  has  injuriously  affected  the  rights  of  an  individual 
because  of  repugnancy  to  some  constitutional  limitation,  but  to  demand  of 
the  State  that  it  establish  its  right  to  exist  as  a  State,  republican  in  forn;. 

As  the  issues  presented,  in  their  very  essence,  are,  and  have  long  since 
by  this  c^urt  been,  definitely  determined  to  be  political  and  governmental, 
and  embraced  within  the  scope  of  the  powers  conferred  upon  Congress,  and 
not  therefore  within  the  reach  of  judicial  power,  it  follows  that  the  case 
presented  is  not  within  our  iurisdiction.  and  the  writ  of  error  must  there- 
fore be,  and  it  is,  dismissed  for  want  of  jurisdiction.' 


'  Ibid..  149-51. 


XIX 


^1 


EXTENT  AND  EXERCISE  OF  JUDICIAL  POWER 

This  Constitution,  and  the  Laws  of  the  United  States  which  shall  be  made  in  Pursuance 
thereof ;  and  all  Treaties  made,  or  which  shall  be  made,  under  the  Authority  of  the  United 
States,  shall  be  the  supreme  l-aw  of  the  Land;  and  the  Judges  in  every  Stale  shall  be  bound 
thereby,  any  Thing  in  the  Constitution  or  Laws  of  any  State  to  the  Contrary  notwith- 
standing.    IConstitulwn  of  the  I'niled  States,  ArtUlv  II,  paragraph  i) 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to  any  suit 
in  law  or  e(|uity,  commenced  or  prosecuted  against  one  of  the  United  States  by  Citizens  of 
another  State,  or  by  Citizens  or  Sul)jects  of  any  I'oreign  State.  i,Const\tuUon  of  the 
United  Stales,  nth  Amendment,  adopted  179S.) 

By  the  constitution,  if  was  ordained  that  this  judicial  power,  in  cases  where  a  state 
was  a  party,  should  be  exercised  by  this  Court  as  one  of  original  jurisdiction.  The  states 
waived  their  exemption  from  judicial  power,  as  sovereigns  by  original  and  inherent  right, 
by  their  own  grant  of  its  exercise  over  Iheinselves  in  such  cases,  but  which  they  would 
nut  grant  to  any  inferior  tribunal.  By  this  grant,  this  Court  has  acquired  jurisdiction  over 
the  parties  in  this  cause,  by  their  own  consent  and  delegated  authority:  as  .their  agent  for 
executing  the  judicial  power  of  the  United  States  in  the  cases  specified.  i.Mr.  Justice 
Baldii-in  in  Rhode  Island  v  Massachusetts,  li  I'eters,  6sy,  jio,  decided  in  1S38.) 

Our  next  inquiry  will  be,  whether  wc  have  jurisdiction  of  the  subject  matters  of  the 
suit,  to  hear  and  determine  them 

That  it  is  a  controversy  between  two  states,  cannot  be  denied ;  and  though  the  constitu- 
tion does  luit,  m  terms,  extend  the  1:  licial  power  to  all  controversies  tietv.een  two  or 
more  states,  yet  it  in  terms  exc'udes  n  c,  whatever  may  be  their  nature  or  subject.  It  is, 
theref'ire,  a  question  of  construction,  whether  the  controversy  in  the  present  case  is  within 
the  grant  of  judicial  power.  {Mr.  Justice  Baldu-in  in  State  of  Khode  Island  v.  State  of 
Massachusetts,  13  I'eters,  657,  721,  decided  in  iHjH  ) 

The  fouiiiK  rs  of  our  government  could  not  but  know,  what  has  ever  been,  and  is 
familiar  to  every  statesman  and  jurist,  that  all  controversies  between  nations,  are.  111  this 
sense,  political,  and  not  judicial,  as  none  but  the  sovereign  can  settle  Iheni  .  .  None  can 
be  settled  without  war  or  treaty,  which  is  by  political  power,  but  under  the  oM  and  new 
confederacy  they  could  and  can  be  settle<l  by  a  court  constituted  by  themselves,  as  their 
own  siibstilntes,  authorized  to  do  that  for  states,  which  states  alone  cotil.l  di  before.  We 
are  thus  pointed  to  the  true  boundary  line  between  political  and  judicial  power,  and 
quistions.  A  sovereign  <leci(les  tiy  his  <iwn  will,  which  is  the  supreme  law  within  his  own 
Uiundary  ;  6  Peters,  714.  9  Piters,  748;  a  court,  or  jmlge,  decides  according  to  the  law 
pres'Tilied  by  the  sovereign  power,  and  that  law  is  the  rule  for  judgment.  The  submission 
by  the  sovereigns,  or  states,  to  a  ccnirt  of  law  or  e(|uity,  of  a  controversy  between  them, 
without  prescribing  any  rule  of  decision,  gives  power  to  decide  according  to  the  appropriate 
law  of  the  case;  U  \es.  Z'>A .  winch  depends  on  the  subject  matter,  the  source  and 
nature  of  the  claims  of  the  parlies,  and  the  law  which  governs  them  From  the  time  of 
such  submission,  the  (iiiestion  ceases  to  be  a  political  one,  to  be  decided  by  the  sic  volo,  sic 
jiibeo,  of  political  power;  it  comes  to  the  court  to  be  decided  by  its  judgment,  legal 
discretion,   and   solemn   consideration   of   the   rules  of   law    appropriate   to   its   nature  as   a 

i'udicial  question,  depending  on  the  exercise  of  judicial  power;  as  it  is  bound  to  act  by 
nown  and  settled  [iriiiciples  of  national  or  municipal  jurisprudence,  as  the  case  requires. 
It  has  never  been  contended  th.it  prize  courts  of  admiralty  jurisdiction,  or  ipieslioiis 
before  them,  are  not  strictly  judicial;  they  decide  on  cpiestions  of  war  and  peace,  the  law 
of  rntions,  treaties,  and  the  municipal  laws  of  the  capturing  nation,  by  which  alone  they 
are  constituted;  a  fortiori,  if  such  courts  were  constituted  by  a  solemn  treaty  hctwcen  the 
state  under  whose  authority  the  capture  was  made,  and  tiie  state  whose  citizens  or  subjects 

3)4 


EXTENT   AND   EXEKCISE   OF    JUDICIAL    POWER 


395 


suffer  I  the  capture.  All  nations  submit  to  the  jurisdiction  of  such  courts  over  their 
subjects    and  hold  their  final  decrees  conclusive  on  rights  of  property     6  Cr.  284-5. 

Thest  considerations  lead  to  the  detinition  of  political  and  judicial  power  and  ques- 
tions ;  the  former  is  that  which  a  sovereign  or  state  exerts  by  his  t  -ts  own  authority, 
as  reprisal  and  confiscation;  3  V'es.  429:  the  latter  is  that  which  is  gi<t..ted  to  a  court  or 
judicial  tribunal.  So  of  controversies  between  states ;  they  are  i-:  their  nature  political, 
when  the  sovereign  or  state  reserves  to  itself  the  right  of  deciding  on  it :  makes  it  the 
"  subject  of  a  treaty,  to  be  settled  as  between  states  independent,"  or  "  the  foundation 
of  representations  from  state  to  state."  This  is  political  equity,  to  be  adjudged  by  the 
parties  themselves,  as  contradistinguished  from  judicial  equity,  administered  by  a  court  of 
justice,  decreeing  the  equum  et  bonum  of  the  case,  let  who  or  what  be  the  parties  '  efore 
them,  ^^^r.  Justice  Baldwin  in  Rhode  Island  v.  Massachusetts,  ll  I'etcrs,  657,  736-7^8, 
decided  in  1838.) 

,^  The  grant  of  judicial  power  is  not  confined  to  the  administration  of  laws  passed  in 

fiursuance  to  the  provisions  of  the  Constitution,  nor  confined  to  the  interpretation  of  such 
^  aws ;  but,  by  the  very  terms  of  the  grant,  the  Constitution  is  under  their  view  when  any 

act  of  Congress  is  brought  before  them,  and  it  is  their  duty  to  declare  the  law  void,  and 
refuse  to  execute  it,  if  it  is  not  pursuant  to  the  legislative  powers  conferred  upon  Congress. 
And  as  the  final  appellate  power  in  all  such  questions  is  giv»  to  this  court,  controversies 
as  to  the  respective  powers  of  the  United  States  and  the  States,  instead  of  being  deter- 
mined by  military  and  physical  force,  are  heard,  investigated,  and  finally  settled,  with  the 
calmness  and  deliberation  of  judicial  inquiry.  And  no  one  can  fail  to  see,  that  if  such  an 
arbiter  had  not  been  provided,  ip  our  complicated  system  of  government,  internal  tran- 
quillity could  not  have  been  preserved;  and  if  such  controversies  were  left  to  arljitrament 
of  physical  force,  our  Government,  State  and  National,  would  soon  cease  to  be  Govern-'ients 
of  laws,  and  revolutions  by  force  of  arms  would  take  the  place  of  courts  of  justice  and 
judicial  decisions 

In  organizing  such  a  tribunal,  it  is  evident  that  every  precaution  was  taker,  which 
human  wisdom  could  devise,  to  fit  it  for  the  high  duty  with  which  it  was  intrustel  .  .  . 
This  tribunal,  therefore,  was  erected,  and  the  powers  of  whic.i  we  have  spoken  conferred 
upon  it,  not  by  the  Federal  Government,  but  by  the  people  of  the  Stales,  who  formed  and 
adopted  that  Government,  and  conferred  upon  it  all  the  powers,  legislative,  executive,  a, id 
judicial,  which  it  now  possesses.  And  in  order  to  secure  its  independen  .  and  enable  it 
faithfully  and  firmly  to  perform  its  duty,  it  engrafted  it  upon  the  Consti  i   itself,  and 

declared  that  this  court  should  have  appellate  power  in  all  cases  arising  u.„lcr  the  Con- 
stitution anil  laws  of  the  United  States.  So  long,  therefore,  as  this  C.nstitution  shall 
endure,  this  tribunal  must  exist  with  it,  deciding  in  the  peaceful  forms  of  judicial  proceed- 
ing the  angry  and  irritating  controversies  between  sovereignties,  which  in  other  countries 
have  been  determined  by  the  arbitrament  of  force.  (Chief  Justice  Taii'y  in  Ablciiiai:  v. 
Booth,  ii  Howard,  506,  sso-s^i,  decided  in  1858.) 

A  court  is  a  tribunal  presided  over  hy  one  or  more  judges,  for  tne  exercise  of  such 
judicial  power  as  has  been  conferred  upon  it  by  law.  Blackstone.  following  Coke,  defines 
it  as  "a  place  where  justice  is  judicially  administered"  (3  Bl.  Com.  2i)  ;  but  it  is  also 
essential  that  this  place  be  designated  by  law.  and  that  the  person  or  persons  authorized 
to  administer  justice  be  at  that  place  for  the  purpose  of  administering  justice  at  such 
times  as  may  be  also  designated  by  law.  The  times  fixed  by  law  for  the  transaction  of 
jndicial  business  are  called  "terms."  and  the  periods  between  the  end  of  one  term  and 
the  beginning  of  the  next  are  called  "  vacations."  These  "  terms  "  vary  m  different  juris- 
dictions according  to  the  statutes  by  which  they  are  fixed,  in  some  states  ending  at  fixed 
dates  and  in  others  continuing  until  the  commencement  of  a  succeeding  term  (Mr. 
Justice  Harrison  in  I'on  Schmidt  v.  IVidher,  99  California,  S'l,  5'-',  decided  in  1S03.) 

As  jurisdiction  is  the  first  question  which  must  arise  in  every  cause,  I  have  confined  my 
examination  of  this,  entirely  to  that  point,  and  that  branch  of  it  which  relates  to  the 
capacity  of  the  plaintiffs  to  ask  the  interposition  of  this  court.   .    .    . 

In  my  opinion  there  is  no  plaintiff  in  this  suit;  and  this  opinion  precludes  any  examina- 
tion into  the  merits  of  the  bill,  or  the  weight  of  any  minor  objections  My  judgment 
stops  me  at  the  threshold,  and  forbids  me  to  examine  Into  the  acts  complained  of.  ( Mr. 
Justice  Baldwin  in  Cherokee  Xatidn  t:  State  of  Georgia,  5  rcters,  1.  3i-3i,  decided  in 
1S31. ) 

The  power  to  hear  and  determine  a  cause  is  jurisii  tion ;  it  is  "  coram  judice,"  when- 
ever a  case  is  presented  which  brings  this  power  intc  action ;  if  the  petitioner  states  such 


1: 


f- 


M 


BB 


396 


THE  UNITED  STATES:  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 


u 


a  case  in  this  petition,  that  on  a  demurrer,  the  court  would  render  jmlgmc  us  favor. 

It  IS  an  undoubted  case  of  jurisdiction:  whether  on  an  answer  denying  and  ;  ig  in  issue 
the  allegations  of  the  petition,  the  petitioner  makes  out  his  case,  is  the  esimse  of  juris- 
diction conferred  by  the  filing  of  a  petition  containing  ajl  the  requisites  and  in  the  manner 
prescribed  by  law.  (Afr.  Justice  Baldiuin,  in  United  Stites  v.  Arredondn,  6  I'vlers,  691, 
709,  decided  in  iSji.) 

The  case  is  now  before  us  for  consideration,  on  a  motion  by  the  defendant,  to  dismiss 
the  bill  for  want  of  jurisdiction  in  the  cause. 

However  late  this  objection  has  been  made,  or  may  be  made  in  any  canse,  in  an 
inferior  or  appellate  court  of  the  United  Slates,  it  must  be  considered  and  decided,  before 
any  court  can  move  one  further  step  in  the  cause :  as  any  movement  is  ncc  essarily  the 
exercise  of  jurisdiction.  Jurisdiction  is  the  power  to  hear  and  determine  the  subject 
matter  in  controversy  between  parties  to  a  suit,  to  adjudicate  or  exercise  any  judicial 
power  over  them :  the  question  is,  whether  on  the  case  before  a  court,  their  action  is 
judicial  or  extra-judicial:  with  or  without  the  authority  of  law,  to  render  a  judgment  or 
decree  upon  the  rights  of  the  litigant  parties  If  the  law  confers  the  power  to  render 
a  judgment  or  decree,  then  the  court  has  jurisdiction:  what  shall  be  adjudged  or  decreed 
between  the  parties,  and  with  which  is  the  right  of  the  case,  is  judicial  action,  by  hearing 
and  determining  it.    6  Peters,  709;  4  Russell,  4IS:  i  Peters,  20J-7. 

A  motion  to  dismiss  a  cause  pending  in  the  courts  of  the  United  States,  is  not  analogous 
to  a  plea  to  the  jurisdiction  of  a  court  of  common  law  or  equity  in  fingland :  there  the 
superior  courts  have  a  general  jurisdiction  over  all  persons  within  tlie  realm,  and  all 
causes  of  action  between  them.  It  depends  on  the  subject  matter,  whether  the  jurisdiction 
shall  he  exercised  by  a  court  of  law  or  equity;  but  that  court,  to  which  it  appropriately 
belongs,  can  act  judicially  upon  the  party  and  the  subject  of  the  suit;  unless  it  shall  be 
made  apparent  to  the  court  that  the  judicial  determination  of  the  case  has  been  withdrawn 
from  the  court  of  general  jurisdiction,  to  an  inferior  and  limited  one.  .    .    . 

But  as  this  Court  is  wi',c  of  limited  and  special  original  jurisdiction,  its  action  must  be 
confined  to  the  particular  cases,  controversies,  and  parties  over  which  the  constitution 
and  laws  have  authorized  it  to  act;  any  proceeding  without  the  limits  prescribed,  is  coram 
non  ludice,  and  its  action  a  nullity.  10  Peters,  474;  S.  P.  4  Russ.  415.  And  whether  the 
want  or  excess  of  power  is  objected  by  a  party,  or  is  apparent  to  the  Court,  it  must 
surcease  its  action,  or  proceed  extra-judicially. 

Before  we  can  proceed  in  this  cause  we  must,  therefore,  inquire  whether  wc  can  hear 
and  determine  the  matters  in  controversy  between  the  parties,  who  are  two  states  of  this 
Union,  sovereign  within  their  respective  boundaries,  save  that  portion  of  power  which  they 
have  granted  to  the  federal  government,  and  foreign  to  each  other  for  all  but  federal 
purposes  (Mr.  Justice  Paldnin  in  Stale  of  Rhode  Island  v.  State  of  Massachusetts,  u 
Peters,  657,  718,  710,  decided  in  18 j8.) 

The  power  to  hear  and  determine  a  cause  is  jurisdiction ;  and  it  is  coram  judtce  when- 
ever a  case  is  presented  which  brings  this  power  into  action.  But  before  this  power  can 
be  affirmed  to  exist,  it  must  be  made  to  appear  that  the  law  has  given  the  tribunal  capacity 
to  entertain  the  complaint  against  the  person  or  thing  sought  to  be  charged  or  affected; 
that  such  complaint  has  actually  been  preferred .  and  that  such  person  or  thing  has  been 
properly  brought  before  the  tribunal  to  answer  the  charge  therpin  contained.  When  these 
appear,  the  (urisdiction  has  attached:  the  right  to  hear  and  determine  is  perfect;  and  the 
decision  of  every  question  thereafter  arisiiik'  is  but  the  exercise  I'f  the  jurisdiction  thus 
conferred;  and  whether  determined  rightfully  or  wrongfully,  correctly  or  erroneously,  is 
alike  immaterial  to  the  validity,  force,  and  effect  of  the  final  judgment,  when  brought 
collaterally  in  question.  (Mr.  Justice  Kanney  in  Sheldon  v.  Newton,  3  Ohio  St.  494,  499, 
decided  in  1814.) 

The  cases  in  this  court  show  that  the  framers  of  ^  Constitution  did  provide,  by  that 
instrument,  for  the  judicial  determination  of  all  cases  in  law  and  equity  between  two  or 
more  States,  including  those  involving  questions  of  boundary.  Did  they  omit  to  provide 
for  the  judicial  determination  of  controversies  arising  between  the  United  States  and  one 
or  more  of  the  States  of  the  Union?  This  question  is  in  effect  answered  by  United  States 
v.  North  Carolina.  136  U.  S.  211.  That  was  an  action  of  debt  brought  in  this  court  by  the 
United  States  against  the  State  of  North  Carolina,  upon  certain  bonds  issued  by  tliat 
State.  The  State  appeared,  the  case  was  determined  here  upon  its  merits,  and  judgment 
was  rendered  for  the  Stale.  It  is  true  that  no  (iiiestion  was  made  as  to  the  jurisdiction  of 
this  court,  and  nothing  was  therefore  said  in  the  opinion  upon  that  subject.  But  it  did 
not  escape  the  attention  of  the  court,  and  the  judgment  would  not  have  been   rendered 


EXTENT  AND  EXERCISE  OF  JUDICIAL  POWER 


397 


except  upon  the  theory  that  this  court  has  original  jurisdiction  of  a  suit  by  the  United 
States  against  a  State.  As,  however,  the  (niest.on  of  juris<hction  is  vital  in  this  case,  and 
is  distinctly  raised,  it  is  proper  to  coiisuUr  it  upon  its  merits.  (Mr  Justice  Harlan  in 
United  Slates  v.  Slate  of  Texas,  143  Untied  Slates,  6il,  (>4i,  decided  in  iSgi.) 

We  think  these  proceedings  were  instituted  under  a  mistaken  apprehension  of  the  proper 
functions  of  the  judiciary  t'ourts  of  justice  are  csiahlished  to  try  questions  perlainiiiR  to 
the  rights  of  individuals  An  action  is  the  form  of  a  suit  given  by  law  for  the  recovery 
of  that  which  is  one's  due,  or  a  legal  demand  of  one's  right.  .  .  .  Hut  courts  will  not  go 
out  of  their  proper  sphere  to  determine  the  constitutionality  or  unconstitutionality  of  a 
law.  They  will  not  declare  a  law  unconstitutional  or  void  in  the  alistract,  for  that  would 
be  interfering  with  the  legislative  power,  which  is  separate  and  distinct  .  .  .  Eiul  unless 
some  individual  right  directly  affecting  the  parties  litigant  is  thus  broug'  •  in  (juestion,  so 
that  a  jiiduial  ilmsion  becomes  necessary  to  settle  the  matters  in  controversy  between 
them  relative  thereto,  the  courts  have  no  jurisdiction,  aiul  it  would  be  a  perversion  of 
the  purposes  for  which  they  were  instituted,  and  an  assumption  of  functions  that  do  not 
belong  to  them,  to  undertake  to  settle  abstract  fjuestions  of  law.  in  whatever  sha|ic  such 
questions  may  be  presented.  .  .  .  Indeed,  it  is  well  settled,  that  courts  will  not  take 
cognizance  of  fictitious  suits,  instituted  merely  to  obtain  judicial  opinions  upon  points  of 
1-aw  ...  As  we  are  distinctly  informed  by  both  parties  that  this  is  a  fictitious  suit, 
without  enquiring  into  the  grounds  upon  whch  the  judgment  was  rendered,  as  it  was  for 
the  defendant  and  only  for  costs,  the  judgment  below  will  be  affirmed  at  the  plaintiff's  costs 
in  this  court.     (Mr.  Justice  Smith  in  Brewington  v.  Lowe,  I  Indiana.  71),  80-81,  decided  in 

No  consent  of  counsel  can  give  jurisdiction.  Appellate  jurisdiction  depends  on  the 
Constitution  and  the  acts  of  Congress.  When  these  do  not  confer  it,  courts  of  the  United 
States  cannot  exercise  it. 

We  cannot  take  cognizance  of  a  case  not  brought  before  us  in  conformity  with  the  law. 

The  case  at  bar,  therefore,  must  be  dismissed.  (Chief  Justice  Chase  in  The  Lucy, 
8  iVallace,  307,  309-310,  decided  in  t868.) 

Since  men  are  naturally  equal,  and  their  rights  and  obligations  are  the  same,  as  equally 
proceeding  from  nature,  nations  composed  of  men  considered  as  so  many  free  persons, 
living  together  in  the  state  of  nature,  are  naturally  equal,  and  receive  from  nature  the 
same  obligations  and  rights  ...  A  dwarf  is  as  much  a  man  as  a  giant;  a  small  republic  is 
as  much  a  sovereign  state  as  the  most  powerful  kingdom.  (.1/.  de  I'altet,  The  Law  of  \a- 
tions;  or  Principles  of  the  Law  of  Xature:  Applied  to  the  Conduct  and  Affairs  of  Xaticnt 
and  Sovereigns,  1758.     Translated  from  the  French,  I'ol.  I,  1760,  p.  6.) 

One  cardinal  rule,  underlying  all  the  relations  of  the  States  to  each  other,  is  that  of 
equality  of  right.  Each  State  stands  on  the  same  level  with  all  the  rest.  It  can  impose  its 
own  legislation  on  no  one  of  the  others,  and  is  bound  to  yield  its  own  views  to  none  Vet, 
whenever,  as  in  the  case  of  Stiss^uri  v  Illinois,  180  U  S  208,  the  action  of  one  State 
reaches  through  the  agency  of  natural  laws  into  the  territory  of  another  State,  the  question 
of  the  extent  and  the  limitations  of  the  rights  of  the  two  States  becomes  a  matter  of 
justiciable  dispute  between  them,  and  this  court  is  called  upon  to  settle  that  dispute  in 
such  a  way  as  will  recognise  the  equal  rights  of  l»th  and  at  the  same  time  establish  justice 
between  them.  In  other  words,  through  these  --UTcessivc  disputes  and  decisions  this  court 
is  practically  building  up  what  may  not  improperly  be  called  interstate  common  law.  (Mr. 
Justice  Brewer  in  Kansas  v.  Colorado,  X)6  United  States,  46,  97-8,  decided  in  1907.) 


«^ 


CHAPTER  XIX 


EXTENT    AND    EXERCISE    OF    JUDICIAL    POWER 


.^J 


The 

of  Extent 


After  having  considered  at  some  length  the  nature  of  judicial  power, 
and  the  powers  of  the  Supreme  Court  under  the  Constitution,  we  are  pre- 
pared to  take  up  the  question  of  the  extent  of  judicial  power  and  the  man- 
rer  in  which  it  is  to  be  exercised.  The  first  part  of  this  question  need  not 
long  detain  us,  for  the  Constitution  itself  has  determined  the  extent  of  the 
judicial  power  of  the  United  States,  which  can  only  be  enlarged,  lessened, 
or  modified  by  an  amendment  to  the  Constitution  of  the  United  States.  In 
the  second  section  of  Article  II  it  is  said: 


The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and  Equity,  aris- 
ing under  this  Constitution,  the  Laws  of  the  L'nited  States,  and  Treaties 
made,  or  which  shall  be  made,  under  their  Authority ;  —  to  all  Cases  affect- 
ing Ambassadors,  other  public  Ministers  and  Consuls ;  —  to  all  Cases  of 
admiralty  and  maritime  Jurisdiction;  —  to  Controversies  to  which  the  United 
States  shall  be  a  F'arty ;  —  to  Controversies  between  two  or  more  States ;  — 
between  a  State  and  Citizens  of  another  State;  —  between  Citizens  of  differ- 
ent States;  —  l)etween  Citizens  of  the  same  State  claiming  Lands  under 
Grants  of  different  States,  and  between  a  State,  or  the  Citizens  thereof, 
and  foreign  States,  Citizens  or  Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls, 
and  those  in  wliirh  a  State  shall  be  Party,  the  supreme  Court  shall  have 
original  Jurisdiction  In  all  the  other  Cases  before  tnentioncd,  the  supreme 
Court  shall  have  appellate  Jurisdiction,  both  as  to  I-.aw  and  Fact,  with  such 
E.xceptions,  and  under  such  Regulations  as  the  Congress  shall  make. 

It  wiM  be  observed  that,  in  the  first  of  these  two  paragraphs,  all  of  the 
cases  are  enumerated  to  which  the  judicial  power  of  the  United  States  shall 
extend,  that  in  the  second  paragraph  the  distinction  is  drawn  between  original 
and  appellate  jurisdiction  of  the  Supreme  Court,  leaving  the  Congress  free 
to  vest  in  the  inferior  courts  which  it  may  establish  the  other  phases  of  the 
judicial  power;  but  with  the  significant  proviso  that,  in  all  the  cases  to 
which  the  judicial  power  of  the  United  States  extends,  with  the  necessary 
e.xcc])tion  of  cases  of  orig-nal  jurisdiction,  the  Supreme  Court  "  shall  have 
appellate  Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulati  )ns  as  the  Congress  shall  make." 

It  is  further  to  be  observed  that  appellate  jurisdiction  is  not  confined  to 
cases  originating  in  the  inferior  courts  "  as  Congress  may  from  time  to  time 

39= 


EXTENT  AND   EXERCISE  OF   JUDICIAL   POWER 


399 


ordain  and  establish,"  but  that  it  extends  to  all  cases  specified  in  the  grant 
of  power,  whether  they  be  begun  in  a  State  or  Federal  court;  and  that,  first 
and  foremost  among  such  cases,  are  those  in  law  and  equity  "  arising  under 
this  Constitution,  the  Laws  of  the  United  States,  and  Treaties  made,  or 
which  snail  be  made,  under  their  Authority."  The  Government  of  the  Union 
is  a  government  of  enumerated  powers,  and  therefore  of  lin.ited  jurisdic- 
tion;  but  within  the  extent  of  those  powers  it  is  cupreme.  and  ihe  propriety 
or  impro,.iiety  of  its  action  is  to  be  determined,  in  the  last  resort,  by  the 
Supreme  Court  of  the  States,  whose  agent  it  is,  not  by  the  States  them- 
selves. 

The  judicial  power  of  the  United  States  is  thus,  in  its  entirety,  vested 
in  a  Federal  court,  whether  it  be  supreme  or  inferior.  It  was  proposed  and 
urged  in  the  Federal  Convention  to  vest  the  courts  of  the  individual  States 
with  jurisdiction  and  to  allow  an  appeal  from  the  judgments  of  the  State 
courts  to  the  Supreme  Court  of  the  United  States,  in  order  to  secure  uni- 
formity of  decision  by  the  use  of  existing  agencies.  But  the  framers  of 
the  Constitution  decided,  wisely,  as  experience  shows,  in  favor  of  a  judi- 
cial agenr  of  the  United  States  as  a  whole,  in  preference  to  the  use 
of  a  court  of  any  particular  State  as  the  common  agency  of  the 
States. 

B}'  the  first  section  of  the  third  article  of  the  Constitution,  "  The  judicial 
Power  of  the  United  States,  shall  be  vested  in  one  Supreme  Court,  and  in 
such  inferior  Courts"  as  may  be  established  from  time  to  time  by  the  Con- 
gress. In  the  second  section  of  the  same  Article  this  Supreme  Court  is 
invested  with  original  jurisdiction  "in  all  cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls,  and  those  in  which  a  State  shall  be  a 
party."  These  were  matters  of  supreme  importance,  and  therefor^  con- 
fided to  the  Supreme  Court  if,  as  will  be  seen,  the  beneficiaries  chose  to 
consider  its  juristliction  exclusive  and  availed  themselves  of  the  Supreme 
instead  of  an  inferior  tribunal.  This  does  not  mean  that  the  other  cases 
to  which  the  judicial  power  was  extended  were  not  important,  but  that,  in 
the  opinion  of  the  framers  of  the  Constitution,  they  might  arise  and  be 
decided  in  inferior  tribunals  of  the  State  or  of  the  United  States,  subject 
to  appeal  to  the  Supreme  Court  in  order  to  correct  error  and  to  ensure  uni- 
formity of  decision.  As  we  are  dealing  with  technical  matters,  it  is  well 
to  be  technical,  and  to  define  the  sense  in  which  these  terms  are  used  and 
understood  in  order  to  make  for  comprehension  and  clearness,  even  if  the 
terms  are  so  familiar  that  they  seem  to  carry  their  own  meaning  with  them. 

In  rendering  the  opinion  of  the  court  in  the  case  of  li^hite  County  Com- 
missioners v.  Gwin  (136  Indiana  R.ports.  562.  577),  decided  in  1893,  Mr. 
Justice  McCabe  said,  on  behalf  of  his  brethren: 


J 


B' 


If 


■I  I 


400 


THE   UNITED  STATES:   A  STUDY   IN    INTERi^ATIONAL  ORGANIZATION 


Court 
Defined 


^1 


In  modern  times,  and  under  our  form  of  Rovernmcnt,  the  judicial  power 
is  exercised  by  means  of  courts.  A  court  is  an  instrumentality  of  govern- 
ment. It  is  a  creation  of  the  law,  and  in  some  respects  it  is  an  imaginary 
thing,  that  exists  only  in  legal  contemplation,  very  similar  to  a  coriwration. 
A  time  when,  a  place  where,  and  the  persons  by  whom  judicial  functions 
are  to  lie  exercised,  are  essential  to  complete  the  idea  of  a  court.  It  is  in 
its  organized  aspect,  with  all  these  constituent  elements  of  time,  place,  and 
officers,  that  completes  the  idea  of  a  court  in  the  general  legal  acceptation 
of  the  term. 


The  word 
"  Supreme ' 


FiniUty 


Jurisdiction 


This  is  the  language  of  a  State  court,  but  the  idea  pervades  the  United 
States  as  well  as  the  States,  and  to  show  its  universality  the  decision  of  a 
State  has  been  chosen  in  preference  to  that  of  a  Federal  court. 

For  a  like  reason,  the  definition  of  a  supreme  court  is  taken  from  the 
opinion  of  Mr.  Justice  Dent  in  the  case  of  Koonce  v.  Doolittle  (48  VV.  Va. 
Rep.,  592,  594),  decided  in  1900.  who  says: 

The  word  "  Supreme "  meaning  highest  in  the  sense  of  final  or  last 
resort.  Here  all  litigation  must  end,  and  when  this  Court  has  once  finally 
determined  a  question  it  has  no  power  to  reopen  it. 

It  will  be  noted  that  two  elements  are  present  and  must  coexist — finality 
as  regards  the  litigant  and  finality  as  regards  the  court.  That  is  to  say,  it 
is  the  last  court  to  which  the  case  can  lie  carried,  and,  when  that  court  has 
finally  decided  the  case,  it  has  exhausted  the  judicial  power  with  which  it 
is  vested,  and.  because  thereof,  it  has  no  power  to  reopen  it. 

But  something  more  is  needed  to  complete  the  idea  of  a  court,  whether 
it  be  a  supreme  or  inferior  tribunal.  That  idea  is  contained  in  the  term 
"  jurisdiction,"  which,  like  the  other  two,  has  been  admirably  defined  by  a 
State  judge  in  the  case  of  Munday  v.  F<w7  (34  N.  J.  Law  Rep.,  418,  422), 
decided  in  1871,  in  which  Mr.  Chief  Justice  Beasley,  speaking  for  his 
brethren,  said: 

Jurisdiction  may  be  defined  to  be  the  right  to  adjudicate  concerning  the 
subject  matter  in  the  given  case.  To  constitute  this  there  are  three  essen- 
tials: F"irst.  The  court  must  have  cognizance  of  the  class  of  cases  to  which 
the  one  to  be  adjudged  belongs.  Second.  The  proper  parties  must  be 
present.  And.  Third,  'i'he  point  decided  must  he,  in  substance  and  effect, 
within  the  sphere,  and  that  its  action  is  void  with  respect  to  persons  who 
are  strangers  to  its  proceedings,  are  propositions  established  by  a  multitude 
of  authorities. 


A  matter  of  fundamental  importance  in  this  connection  is  that  a  court 
of  limited  jurisdiction,  as  are  the  P'ederal  courts,  Supreme  as  well  as  infe- 
rior, must,  before  it  entertains  a  case,  decide  for  itself  whether  it  possesses 


EXTENT  AND   EXERCISE  OF  JUDICIAL   POWER 


401 


jurisdiction,  and  whether  it  can  lawfully  assume  and  finally  decide  the  case 
presented  to  it.  In  this  regard  the  federal  differ  frcm  courts  of  Kfiicral 
jurisdictions,  in  which,  it  is  to  Iw  presumed,  unless  the  contrary  be  shown. 
that  jurisdiction  exists,  with  its  necessary  conseqi.ences.  In  the  opening 
sentence  of  his  opinion  in  Cherokee  Nation  v.  doruia  (5  Peters,  1.  31), 
decided  in  1831,  Mr.  Justice  Baldwin  said  that  he  had  confined  his  exam- 
ination of  the  ca.se  to  the  point  of  jurisdiction,  "as  jurisdiction  is  the  first 
question  which  must  confront  us  in  every  case."  .And.  delivering'  the  opinion 
of  the  court  in  the  j,'reat  and  ieadinf,'  case  of  Rhode  Island  v.  Massiwhusetts 
(12  Peters,  657,  718).  decided  seven  years  later,  he  had  occasion  to  consider 
the  matter  of  jurisdiction  in  detail,  inasmuch  as  Massachusetts  objected  to 
the  jurisdiction  of  the  Supreme  Court  in  the  bill  against  it  filed  by  Rhode 
Island  and  to  make  clear  the  distinction,  so  important  in  federal  courts,  Ix- 
tween  tribunals  of  general  and  limited  powers.  On  the  first  phase  of  the 
subject  he  said: 

However  late  this  objection  has  been  made,  or  may  be  made  in  any 
cause,  in  an  inferior  or  appellate  court  of  the  United  States,  it  must  be 
considered  and  decided,  before  any  court  can  move  one  further  step  in  the 
cause;  as  any  movement  is  necessarily  ti'c  exercise  of  jurisdiction.  Juris- 
diction is  the  power  to  hear  and  determine  the  subject  matter  in  contro- 
versy l)ctvveen  parties  *o  a  suit,  to  adjudicate  or  exercise  any  judicial  power 
over  tlicm ;  the  question  is,  whether  on  the  case  before  a  court,  their  action 
IS  judicial  or  extra-judicial :  with  or  without  the  authoritv  of  law,  to  render 
a  judgment  or  decree  upon  the  rights  of  the  litigant  parties.  If  the  law 
confers  the  power  to  render  a  judgment  or  decree,  then  the  court  has  juris- 
diction; what  shall  be  adjudged  or  decreed  between  the  parties,  and  with 
which  is  the  right  of  the  case,  is  judicial  action,  by  hearing  and  determin- 
ing it. 

On  the  second  branch  of  the  question,  the  learned  Justice  observed : 

_  A  motion  to  dismiss  a  cause  pending  in  the  courts  of  the  United  States, 
IS  not  analagous  to  a  plea  to  the  jurisdiction  of  a  court  of  common  law  or 
equity  in  England;  there  the  superior  courts  have  a  general  jurisdiction 
over  all  persons  within  the  realm,  and  all  causes  of  action  between  them. 
It  depends  on  the  subject  matter,  whether  the  jurisdiction  shall  be  exer- 
cised by  a  court  of  law  or  equity ;  but  that  court,  to  which  it  appropriately 
belongs,  can  act  judicially  upon  the  party  and  the  subject  of  the  suit:  unless 
it  shall  be  made  apparent  to  the  court  that  the  judicial  determination  of 
the  case  has  been  withdrawn  from  the  court  of  general  jurisdiction. 

As  a  denial  of  jurisdiction  over  the  subject  matter  of  a  suit  between 
parties  within  the  realm,  over  which  and  whom  the  court  has  power  to  act, 
cannot  be  successful  in  an  English  court  of  general  jurisdiction;  a  motion 
like  the  present  could  not  be  sustained  consistently  with  the  principles  of 
its  constitution.  But  as  this  Court  is  one  of  limited  and  special  original 
jiinsfliction.  its  action  must  be  confined  to  the  p.nrtirtdar  on«-«.  controver- 
sies, and  parties  over  which  the  constitution  and  laws  have  authorized  it 


Drtermination 
of  Juritdtctioa 


402  THE   UNITED  STATES:   A   STUDY   IW    INTERNATIONAL  OBCANUATIOK 


*^i( 


"  Judiciinr 
Act" 


to  act;  any  proceeding  without  the  limits  prescribed,  is  coram  non  judicc, 
and  its  action  a  nullity.  .  .  .  And  whether  the  want  or  excess  of  jwwcr 
is  objected  by  a  party,  or  is  apparent  to  the  Court,  it  must  surcease  its 
action,  or  proceed  extra-judicially. 

Before  we  can  proceed  in  this  cause  we  must,  therefore,  inquire  whether 
we  can  hear  and  determine  the  matters  in  controversy  Inrtween  the  parties, 
who  are  two  states  of  this  Union,  soverciKU  within  their  respective 
boundaries,  save  that  portion  of  power  which  they  have  granted  to  the 
federal  government,  and  foreign  to  each  ot^er  for  all  but  federal  purposes. ' 

It  will  not  have  escaped  attention  that,  after  defining  the  original  juris- 
diction of  the  Supreme  Court  and  limiting  it  to  ambassadors,  public  min- 
isters, consuls,  and  cases  to  which  a  State  was  a  party,  the  Constitution 
declared  that  "  the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions  and  under  such  regulations  as  tlie 
Congress  shall  make."  It  is  evident  that  the  intervention  of  Congress  was 
necessary,  inasmuch  as  the  appellate  jurisiliction  to  be  exercised  by  the 
courts  was  not  to  \ye  defined  by  them  but  exercised  according  to  a  rule  which 
the  Congress  should  make.  Until  Congress  had  acted,  the  Supreme  Court 
could  exercise  the  original  jurisdiction  expressly  conferred  upon  it  by  the 
Constitution,  but  could  not  sit  as  an  appellate  tribunal  until  inferior  tri- 
bunals had  been  c-tablished,  from  whose  judgments  an  appeal  might  be 
taken,  or  until  the  >.ianner  of  appeal  from  State  courts  should  have  been 
determined. 

The  first  Congress  accordingly  proceeded  to  execute  this  power  with 
which  it  was  vested,  pursuant  to  the  authorization  contained  in  Article  I, 
Section  8,  clause  18,  "  to  make  all  Laws  which  shall  be  necessary  and  proper 
for  carrying  into  Execution  the  foregoing  Powers,  and  all  other  F'owers 
vested  by  this  Constitution  in  the  Government  of  the  United  States,  or  in 
any  Department  or  Officer  thereof."  The  result  of  its  labors,  in  so  far  as 
the  courts  are  concerned,  is  embraced  in  the  act  to  establish  the  judicial 
courts  of  the  United  States,  approved  September  24,  1789,  providing,  among 
other  things,  that  the  Supreme  Court  should  consist  of  a  Chief  Justice  and 
five  Associate  Justices;  that  the  United  States,  for  judicial  purposes,  should 
be  divided  into  thirteen  districts,  with  a  district  court  in  each,  and  three 
circuits  for  these  districts;  that  the  district  and  circuit  courts  should  have 
original  jurisdiction  in  some  cases  and  concurrent  jurisdiction  in  otiicrs  with 
the  courts  of  the  States;  that  the  Supreme  Court  should  exercise  the 
original  jurisdiction  in  the  cases  mentioned  in  the  Constitution.  The  act 
also  de.  ..ed  and  regulated  appeals  from  the  Federal  and  State  courts  to  the 
Supreme  Court  of  the  Union  and  of  the  States.  This  remarkable  statute 
was  drafted  by  a  committee  of  the  Senate  consisting  of  eight  members,  of 


'  12  Peters,  718-20. 


EXTENT   AND   EXERCISE  OK   JUDICIAL   POWEK 


403 


m 


whom  five,— including  its  chairman.  Oliver  Ellsworth,  later  to  be  Chief 
Justice.— had  been  mcmUTs  of  the  Fc>lcral  Convention.  Section  13  ot  the 
act,  for  which  Mr.  Ellsworth  is  deemed  to  have  been  chiefly  responsible, 
provided : 

That  the  Supreme  Court  shall  have  exclusive  jurisdiction  of  all  contro- 
versies of  a  civil  nature,  where  a  state  is  a  party,  except  between  a  state 
and  its  citizens;  and  except  also  ht-twctn  a  state  and  ntizins  of  other  states, 
or  aliens,  in  which  latter  case  it  shall  have  original  hut  not  exclusive  juris- 
diction. And  shall  have  exclusively  all  such  jurisdiction  of  suits  or  pro- 
ceediiiKS  against  ambassadors,  or  other  public  ministers,  or  their  domestics, 
or  domestic  servants,  as  a  court  of  law  can  have  or  exercise  consistently 
with  the  law  of  nations;  and  original,  but  not  exclusive  jurisdiction  of  all 
suits  brought  by  ambassadors,  cr  other  public  ministers,  or  in  which  a 
consul,  or  vice  consul,  shall  be  a  party.  .  .  .  The  Supreme  Court  shall 
also  have  appellate  jurisdiction  from  the  circuit  courts  and  courts  of  the 
several  states,  in  the  cases  herein  after  specially  provided  for;  and  shall 
have  power  to  issue  writs  of  prohibition  to  the  district  courts,  when  pro- 
ceeding  as  courts  of  admiralty  and  maritime  jurisdiction,  and  writs  of 
ntondamus.  in  cases  warranted  by  the  principles  and  usages  of  law,  to  any 
courts  appointed,  or  persons  holding  office,  under  the  authority  of  the 
United  States.' 

Passing  over  the  method  of  appeal  from  the  district  to  the  circuit,  and  from 
the  circuit  courts  to  the  Supreme  Court,  Section  25  of  the  act  deals  with 
appeals  from  the  courts  of  the  several  States,  enacting: 

That  a  final  judgment  or  decree  in  any  suit,  in  the  highest  court  of  law 
or  equity  of  a  State  in  which  a  decision  in  the  suit  could  be  li.id,  where  is 
drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or  an  authority 
exercised  under  the  United  States,  and  the  decision  is  against  their  validity ; 
or  where  is  drawn  in  (juestion  the  validity  of  a  statute  of,  or  an  authority 
exercised  under  any  State,  on  the  ground  of  their  being  repugnant  to  the 
constitution,  treaties  or  laws  of  the  United  States,  and  the  decision  is  in 
favour  of  such  their  validity,  or  where  is  drawn  in  question  the  construc- 
tion of  any  clause  of  the  constitution,  or  of  a  treaty,  or  statute  of.  or  com- 
mission held  under  the  United  States,  an;!  the  decision  is  against  the  title, 
right,  privilege  or  exemption  specially  set  up  or  claimed  by  either  party, 
under  such  clause  of  the  said  Constitution,  treaty,  statute  or  commission, 
may  be  re-examined  and  reversed  or  aftirmcd  iii  the  Supreme  Court  of 
the  United  States  upon  a  writ  of  error,  the  citation  being  signed  by  the 
chief  justice,  or  judge  or  chancellor  of  the  court  rendering  or  passing  the 
judgment  or  decree  complained  of,  or  by  a  justice  of  the  Supreme  Court 
of  the  United  States,  in  the  same  manner  and  under  the  same  regulations, 
and  the  writ  shall  have  the  same  etTcct,  as  if  the  judgment  or  decree  com- 
plained of  had  been  rendered  or  passed  in  a  circuit  court,  and  the  proceed- 
ing upon  the  reversal  shall  also  be  the  same,  except  that  the  Supreme 
Court,  instead  of  remanding  the  cause  for  a  final  decision  as  before  pro- 
vided, may  at  their  discretion,  if  the  cause  shall  have  been  once  remanded 
before,  proceed  to  a  final  decision  of  the  same,  and  award  execution.     But 

'  1  Statutes  M  Large,  80-1. 


tl 


«#J 


404  THE   UNITED  STATES:   A   STUDY    IM    INTMNATIONAL  OBCANIZATION 

no  Other  error  shall  be  assisned  or  regarded  as  a  eround  of  reversal  in 
any  such  case  as  aforesaid,  than  such  as  apiK-ars  on  tlic  face  of  the  record, 
and  ininiediatcly  respects  the  before  nieiitiDiicd  ()uestions  of  validity  or 
constructior4  of  the  said  constitution,  treaties,  statutes,  commissions,  or 
authorities  in  dispute.' 

Without  (IvveilinR  at  this  time  upon  the  provisions  of  these  sections  of 
the  judiciary  act.  as  it  is  ca!lc<l,  it  will  lie  oliserved  that,  as  far  as  the  judi- 
cial power  of  the  United  States  is  concernetl,  a  decision  of  a  State  court  is 
not  subject  to  reexamination  in  the  Supreme  Court  of  the  United  States 
unless  the  judRnient  or  decree  is  contrary  to  the  Constitution,  treaty  or 
law  of  the  United  States;  but  it  should  also  be  observed  that  this  section 
enabled  the  State  court  to  decide  the  question  involved  in  favor  of  the  Con- 
stitution, treaty  or  law  of  the  United  States,  although  a  Federal  court  tniRht 
be  of  a  different  opinion  if  the  case  were  presented  to  it.  To  prevent  this, 
and  to  enable  the  Federal  courts  to  pass  upon  a  question  involving  the  Con- 
stitution, treaties  or  laws  of  the  L'nited  States,  whether  the  decision  of  the 
State  court  was  in  favor  or  against  the  Constitution,  treaty  or  law  of  the 
United  States,  it  was  enacted  by  the  Congress,  approved  December  23, 
1914,  that: 

"  It  shall  be  competent  for  the  Supreme  Court  to  require,  by  certiorari 
or  otherwise,  any  such  case  to  lie  certified  to  the  Supreme  Court  for  its 
review  and  determination,  with  the  same  power  and  authority  in  the  case 
as  if  it  had  been  carried  by  an  appeal  or  writ  of  error  to  the  Supreme 
Court,  although  the  decisi6n  in  such  case  may  have  liccn  in  favor  of  the 
validity  of  the  treaty  or  statute  or  authority  exercised  under  the  United 
States  or  may  have  been  against  the  validity  of  the  State  statute  or 
authority  claimed  to  lie  repugnant  to  the  Constitution,  treaties,  or  laws  of 
the  United  States,  or  in  favor  of  the  ti»le.  right,  privilege,  or  imniumty 
claimed  under  the  Constitution,  treaty,  statute,  commission,  or  authority  of 
the  United  States."' 

As  in  the  nature  of  judicial  power,  so  in  the  matter  of  its  extent,  the 
decisions  of  the  Supreme  Court  of  the  United  States  are  the  best,  and  in 
this  instance  the  ultimate,  authority  to  which  to  resort;  and  because  of  this. 
several  leading  decisions  of  this  tribunal  will  be  considered  in  turn  and 
somewhat  at  length. 

In  Martin  v.  Hunter  (1  Wheaton.  304),  decided  in  1816.  the  Supreme 
Court  had  occasion  to  consider  the  nature  and  extent  of  the  appellate  power 
of  the  Uniteil  States  in  its  relation  to  the  "  final  judi^ment  or  decree  in  any 
suit  in  the  highest  court  of  law  or  equity  of  a  state."     In  this  instance  the 

'  1   Statutes  at  Larue.  85-7. 
•38  Statutes  at  Large.  790. 


BXTKNT   AND   EXERCISE  OF   JUDICIAL   PUWEK 


40S 


3 


Court  of  Appeals  of  Virginia,  which,  or  a  mandate   from  the  Supreme 
G>urt  of  the  United  States,  rt-iulcred  its  judgment  in  the  following  terms: 

The  court  is  unaniiii<)ii>ly  of  opinion  that  the  appellate  power  of  the 
supreme  court  of  the  L'niteil  States  docs  not  extend  to  this  court  under  a 
sound  construction  of  the  constitution  of  the  L'niteil  States;  that  so  much 
of  the  25th  section  of  the  act  of  congress,  to  establish  tlie  judicial  courts 
of  the  United  States,  as  extends  the  appellate  jurisdiction  of  the  supreme 
Ci.  rt  to  this  court,  is  not  in  pursuance  of  the  constitution  of  the  I'niled 
States.  That  the  writ  of  error  in  this  cause  was  miproviilcntly  allowed 
under  the  authority  of  that  act ;  that  the  procerdinns  thereon  in  the  supreme 
court  wiTe  cortim  nnn  juJicf,  in  relation  to  this  court,  and  that  oliedicnce 
to  its  mandate  be  declined  by  the  court.' 

The  question,  therefore,  presented  hy  this  case,  was,  itripped  of  techni- 
calities, whether,  under  the  Constitution,  the  Supreme  Court  could  properly 
subject  the  decision  of  the  highest  State  court  to  a  re-examination  and,  in 
an  appropriate  case,  rt  erse  that  juc'^ment  or  decree.  In  other  words, 
whether  the  Supreme  Court  of  the  United  States  or  the  court  nf  t'mal  resort 
of  one  of  the  States  was  to  interpret  the  t  onstitution  of  the  I'nited  States; 
or.  narrowing  the  issue,  whether  the  nature  and  extent  of  the  judicial  power  "Naturt  tad 
of  the  Uniti'l  States  were  to  he  deterniined  hy  the  court  of  all  the  States  Ocicrmiacd 
or  hy  the  court  o'  any  one  of  them.  .\s  was  stated  hy  Mr.  Justice  Raldwin, 
in  the  le.i  !mg  case  of  Klunic  Island  v.  Massachusetts  (12  I'eters,  657.  712), 
decided  in  IS,?8,  "the  power  ul  migress  to  make  this  provision  for  carry- 
ing into  execution  the  judicial  power  ....  taken  in  connection  with  the 
constitution,  presents  the  grea*  (lue^tioii  in  this  cause,  which  is  one  of  con- 
str\iction  ai)i)ropriate  to  judicial  power,  and  exclusivel)-  of  judicial  cog- 
nizance, till  the  legislative  powi-r  acts  again  upon  it." 

In  the  case  of  Martin  v.  Hunter,  under  consideration.  Mr.  Justice  Story, 
recently  ajipointed  to  the  hench.  tielivered  the  opinion  of  the  court,  which 
has  stood  the  test  of  criticism  and  re-ex,amiriation.  After  explaining  the 
nature  of  the  more  jK-rfect  Union  of  the  States  and  of  the  two  sovereignties 
created  hy  the  Ctmstitution.  and  ha\  ing  <|Uoted  and  analyzed  the  .section  of 
the  Constitution  ilealing  with  judicial  power,  he  conti  ues.  saying: 

The  next  consideration  is  as  to  the  courts  ir  which  the  judicial  power 
shall  he  vested.  It  is  manifest  that  a  supreme  cou  t  must  bo  established ; 
but  wtuthor  It  l)e  eijually  obligatory  to  establish  interior  courts,  is  a  ques- 
tion of  some  difficulty.  If  coti^jress  may  lawfully  omit  to  establish  inferior 
courts,  it  niiu'ht  follow,  that  in  some  of  the  enumerated  cases  the  judicial 
power  cniild  nowhere  exist.  The  supreme  court  can  have  oricin.il  juris- 
diction in  two  classes  of  cases  only,  viz.  in  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  in  cases  in  which  a  state  is  a  party. 
Congress  cannot   vest   any  portion  of   the   judicial   power   of   the   United 


mi 

%**  i 

i 


^*^ 


'•  t  Wht-toii.  305-6. 


406  THE  UNITED  STATES:  A  STXTOY   IN   INTEKNATIONAL  ORGANIZATION 


4(#i^ 


1^ 


States,  except  in  courts  ordained  and  established  by  itself;  and  if  in  any 
of  the  cases  enumerated  in  the  constitution,  the  state  courts  did  not  then 
possess  jurisdiction,  the  appeiate  jurisdiction  of  the  supreme  court  (admit- 
ting that  it  could  act  on  state  courts)  could  not  reach  those  cases,  and  con- 
sequently, the  injunction  of  the  constitution,  that  the  judicial  power  "  shall 
be  vested."  would  be  disobycd.  It  would  seem,  therefore,  to  follow,  that 
congress  are  bound  to  create  some  inferior  courts,  in  which  to  vest  all  that 
jurisdiction  which,  under  the  constitutio..,  is  exclusively  vested  in  the  United 
States,  and  of  which  the  supreme  court  cannot  take  original  cognisance. 
They  might  establish  one  or  more  inferior  courts;  they  might  parcel  out 
the  jurisdiction  among  such  courts,  from  time  to  time,  at  their  own 
pleasure.  But  the  whole  judicial  power  of  the  United  States  should  be, 
at  all  times,  vested  either  in  an  original  or  appellate  form,  in  some  courts 
created  under  its  authority.* 

After  reen  forcing  the  view  which  he  had  just  expressed  by  an  attentive 
examination  of  the  second  section  of  the  third  article,  he  thus  states  a  fur- 
ther question,  which  naturally  presented  itself : 

It  being,  then,  established  that  the  language  of  this  clause  is  imperative, 
the  next  question  is  as  the  cases  to  which  it  shall  apply.  The  answer  is 
found  in  the  constitution  itself.  The  judicial  power  shall  extend  to  all  the 
cases  enumerated  in  the  constitution.  As  the  mode  is  not  limited,  it  may 
extend  to  all  such  cases,  in  any  form,  in  which  judicial  power  may  be 
exercised.  It  may,  therefore,  extend  to  them  in  the  shape  of  original  or 
appellate  jurisdiction,  or  both;  for  there  is  nothing  in  the  nature  of  the 
cases  which  binds  to  the  exercise  of  the  one  in  preference  to  the  other.' 

The  learned  justice  next  asks  the  question,  "  In  what  cases  (if  any)  is  this 
judicial  power  exclusive,  or  exclusive  at  the  election  of  congress  "  and,  in 
regard  to  the  States,  he  says : 

At  all  events,  whether  the  one  construction  or  the  other  prevail,  it  is 
manifest  that  the  judicial  power  of  the  United  States  is  unavoidably,  in 
some  cases,  exclusive  of  all  state  authority,  and  in  all  others,  may  he  made 
so  at  the  election  of  congress.  No  part  of  the  criminal  jurisdiction  of  the 
United  States  can.  consistentlv  with  the  constitution,  be  delegated  to  state 
tribunals  The  adniiraltv  and  maritime  jurisdiction  is  of  the  same  exclu- 
sive cognisance;  and  it  can  only  be  in  those  cases  where,  previous  to  the 
constitution,  state  tribunals  possessed  jurisdiction  independent  of  national 
authority,  that  they  can  now  constitutionally  exercise  a  concurrent  jurisdic- 
tion. Congress,  throughout  the  judical  act,  and  particularly  in  the  9th,  Uth, 
and  13th  sections,  have  legislated  upon  the  supposition  that  in  all  the  cases 
to  which  the  judicial  powers  of  the  United  States  extended,  they  might 
rightfully  vest  exclusive  jurisdiction  in  their  own  courts.' 

After  stating  that  the  original  jurisdiction  of  the  Supreme  Court  is 

•  1  Wheaton,  330-1. 

•  Ibid..  33i. 

•  Ibid.,  3J6-7. 


EXTENT  AND  EXERCISE  OF  JUDICIAL  POWER 


407 


1 


limited,  but  that  there  are  no  terms  of  limitation  upon  the  jurisdiction  which 
it  may  assume  upon  appeal,  in  so  far  as  the  Constitution,  the  treaties  and 
the  laws  of  the  United  States  are  concerned,  Mr.  Justice  Story  comes  to  the 
specific  question  before  him  for  decision.    Thus: 

As,  then,  by  the  terms  of  the  constitution,  the  appellate  jurisdiction  is 
not  limited  as  to  the  supreme  court,  and  as  to  this  court  it  may  be  exercised 
in  all  other  cases  than  those  of  which  it  has  original  cognisance,  what  is 
there  to  restrain  its  exercise  over  state  tribunals,  in  the  enumerated  cases?* 

And  to  this  question  he  gives  the  following  conclusive  answer: 

The  appellate  power  is  not  limited  by  the  terms  of  the  third  article  to 
any  particular  courts.  The  words  are,  "the  judicial  power  (which  includes 
appellate  power)  shall  extend  to  all  cases,"  &c.,  and  "  iii  all  other  cases 
before  mentioned  the  supreme  court  shall  have  appellate  jurisdiction."  It 
is  the  case,  then,  and  not  the  court,  that  gives  the  jurisdiction.  If  tlie  judi- 
cial power  extends  to  the  case,  it  will  be  in  vain  to  search  in  the  letter  of 
the  constitution  for  any  qualification  as  to  the  tribunal  where  it  depends." 

Examining  this  phase  of  the  case  more  closely,  he  continued : 

On  the  other  hand,  if,  as  has  been  contended,  a  discretion  be  vested  in 
congress  to  establish,  or  not  to  establish,  inferior  courts  at  their  own 
pleasure,  and  congress  should  not  establish  such  courts,  the  appellate  juris- 
diction of  the  supreme  court  would  have  nothing  to  act  upon,  unless  it 
could  act  upon  cases  pending  in  the  state  courts.  Under  such  circumstances 
it  must  be  held  that  the  appellate  power  would  extend  to  state  courts:  for 
the  constitution  is  peremptory  that  it  shall  extend  to  certain  enumerated 
cases,  which  cases  could  exist  in  no  other  courts.' 

There  was,  however,  an  irgument  stronger  than  that  based  upon  the 
reason  of  the  thing,  which  Mr.  Justice  Story  thus  states  in  the  very  next 
paragraph  of  his  opinion: 

But  it  is  plain  that  the  framers  of  the  constitution  did  contemplate  that 
cases  within  the  judicial  cognizance  of  the  United  States  not  only  tiiight 
but  would  arise  in  the  state  courts,  in  the  exercise  of  their  ordinary  juris- 
diction. With  this  view  the  sixth  article  declares,  that  "this  constitution, 
and  the  laws  of  the  United  States  which  shall  be  made  in  pursuanci-  iht-rcof, 
and  all  treaties  made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land,  and  the  judges  in 
every  state  shall  be  hound  thereby,  any  thing  in  the  constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding."  It  is  obvious  tli.at  this  oMiga- 
tion  i-  imperative  upon  the  state  judges  in  their  official,  and  not  merely  in 
their  private,  c.ipacities.  From  the  very  nature  of  their  judicial  duties  they 
would  be  called  upon  to  pronounce  the  law  applicable  to  the  case  in  judg- 

"  Ihid..  .138. 

'  Ibid. 

•  Ibid..  339-40. 


m 


m 


%:'ji.i 


408  THE   UNITED  STA  I ES  :   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 

ment.  They  were  not  to  decide  merely  according  to  the  laws  or  constitu- 
tion of  the  state,  but  according  to  the  constitution,  laws  and  treaties  of  the 
United  States — "  the  supreme  law  of  the  land." 

With  this  statement  of  the  language  of  the  judicial  section  and  of  the 
obligation  imposed  by  the  sixth  article  of  the  Constitution,  Mr.  Justice 
Story  might  have  concluded  this  portion  of  his  opinion,  but  he  was  unwill- 
ing to  overlook  two  further  reasons,  which  then,  and  now,  after  the  experi- 
ence of  a  century,  are  of  importance. 

As  to  the  first  reason  [to  quote  Mr.  Justice  Story's  languaRel— admitting 
that  the  judges  of  the  state  courts  are,  and  always  will  be,  of  as  much 
learning,  integrity,  and  wisdom,  as  those  of  the  courts  of  the  United  States, 
(which  we  very  cheerfully  admit)  it  docs  not  aid  the  argument.  It  is 
manifest  that  the  constitution  has  proceeded  upon  a  theory  of  its  own,  and 
given  or  withheld  powers  according  to  tlie  judgment  of  the  .American  people, 
by  whom  it  was  adopted.  \Vc  can  only  construe  its  powers,  and  cannot 
inquire  into  the  policy  or  principles  which  induced  the  grant  of  them.  The 
constitution  has  presumed  (whether  rightly  or  wrongly  we  do  not  inquire), 
that  state  attachments,  state  prejudices,  state  jealousies,  and  state  interests, 
might  sometimes  obstruct,  or  control,  or  be  supposed  to  obstruct,  or  con- 
trol, the  rcguUr  administration  of  justice.  Hence,  in  controversies  between 
states;  between  citizens  of  different  states;  between  citizens  claiming  grants 
under' different  states;  between  a  state  and  its  citizens,  or  foreigners,  and 
between  citizens  and  foreigners,  it  enables  the  parties,  under  the  authority 
of  congress,  to  have  the  controversies  heard,  tried,  and  determined  before 
the  national  tribunals.  No  other  reason  than  that  which  has  been  stated 
can  be  assigned,  whv  some,  at  least,  of  those  cases  should  not  have  been 
left  to  the  cognizance' of  the  state  courts.    In  respect  to  the  other  enumerated 

cases the  cases  arising  under  the  constitution,  laws,  and  treaties  of  the 

United  States,  ca'^cs  atTecting  ambassadors  and  other  public  ministers,  and 
cases  of  admirattv  and  maritime  jurisdiction— reasons  of  a  higher  and 
more  extensive  na'ture.  touching  the  safety,  peace,  and  sovereignty  of  the 
nation,  might  well  justify  a  grant  of  exclusive  jurisdiction.' 

So  much  for  the  first  reason;  as  to  the  second,  Mr.  Justice  Story  said: 

A  motive  of  another  kind,  perfectly  compatible  with  the  most  sincere 
respect  for  state  tribunals,  might  induce  the  grant  of  app<-llate  power  over 
their  deci^ons.  That  motive  is  the  importance,  and  even  necessity  of 
unifuniiil\  of  decisions  throughout  the  whole  United  States,  upon  all  sub- 
jects within  the  purview  of  the  constitution  Judges  of  equal  learning  and 
integrity,  in  different  states,  niiu'lu  differently  interpret  a  statute,  or  a  treaty 
of  the  I'nited  States,  or  even  tlie  constitution  itself:  If  there  were  no  revis- 
ing authority  to  control  these  jarring  and  discordant  judgments,  and  har- 
monize them  into  uniformity,  the  laws,  the  treaties,  and  the  constitution  of 
the  United  States  wmild  be  different  in  different  states,  and  might,  per- 
haps never  have  precisely  the  same  construction,  obligation,  or  efficicy,  in 
any  two  states.     The  public  mischiefs  that  would  attend  such  a  state  of 

■  1  Wheaton,  346-7. 


EXTENT  AND  EXERCISE  OF  JUDICIAL   POWER 


409 


things  would  be  truly  deplorable ;  and  it  cannot  be  believed  that  they  could 
have  escaped  the  enlightened  convention  which  formed  the  constitution. 
What,  indeed,  might  then  have  been  only  prophecy,  has  now  become  fact ; 
and  the  appellate  jurisdiction  must  continue  to  be  the  only  adequate  remedy 
for  such  evils.' 


I  i| 


,; 


i 


In  Cohens  v.  Virginia  (6  Wheaton,  264),  decided  in  1821,  the  same 
general  question  arose  in  a  different  way  and  was  argued  differently,  but 
decided  in  accordance  with  the  principle  of  Martin  v.  Hunter,  although  the 
ratio  decidendi  of  the  Cohens  case  differed  from  that  of  Martin  v.  Hunter 
in  that  Mr.  Chief  Justice  Marshall  instead  of  Mr.  Justice  Story  delivered 
the  opinion. 

There  was  a  statute  of  the  State  of  Virginia  forbidding  the  sale  of  lot- 
tery tickets  within  the  State.  There  was  an  act  of  Congress  of  May  4, 
1812,  permitting  the  drawing  of  lotteries  within  the  District  of  Columbia; 
and  the  question  was,  whether  this  act  of  Congress  could  be  pleaded  as  a 
defense  to  the  law  of  Virginia  forbidding  the  sale  of  lottery  tickets  within 
the  State.  From  the  judgment  of  the  highest  court  of  the  State  having 
jurisdiction  of  the  cause  of  action,  the  case  ws  removed,  by  writ  of  error, 
to  the  Supreme  Court  of  the  United  States,  where  counsel  for  defendant 
moved  to  dismiss  the  writ  for  want  of  jurisdiction,  upon  the  ground  that 
a  State  was  a  defendant,  that  a  writ  of  error  does  not  lie  from  the  Supreme 
Court  of  the  United  States  to  a  State  court,  and  that  the  Supreme  Court 
had  no  jurisdiction  of  the  case  because  the  judgment  violated  neither  the 
Constitution  nor  any  law  of  the  United  States. 

On  the  important  question  as  stated,  Mr.  Chief  Justice  Marshall  said, 
in  delivering  the  unanimous  opinion  of  the  court : 

ihe  questions  presented  to  the  Court  by  the  first  two  points  made  at 
the  bar  are  of  great  magnitude,  and  may  be  truly  said  vitally  to  affect  the 
Union.  They  .Mude  the  inquiry  whether  the  constitution  and  laws  of  the 
United  States  ve  been  violated  by  the  judgment  which  the  plaintiffs  in 
error  seek  to  .  iew ;  and  maintain  that,  admitting  such  violation,  it  is  not 
in  the  power  of  the  government  to  apply  a  corrective.  They  maintain  that 
the  nation  does  not  possess  a  department  capahlfi  of  restraining  peaceably, 
and  by  authority  of  law.  anv  attempts  which  may  be  made,  by  any  part, 
against  the  Ugi'timate  powers  of  the  whole;  and  that  the  government  is 
reduced  to  ihe  alternative  of  submitting  to  such  attempts,  or  of  resisting 
them  by  force.  They  maintain  that  the  constitution  of  the  United  States 
has  pro'vided  no  tribunal  for  the  final  construction  of  itself,  or  of  the  laws 
or  treaties  of  the  nation;  but  that  this  power  may  be  exercised  n  the  last 
resort  by  the  Courts  of  every  State  in  the  Union.  That  the  constitution, 
laws  and  treaties,  may  receive  as  many  constructions  as  there  are  States; 
and  that  this  is  not  a  mischief,  or,  if  a  mischief,  is  irremediable.^ 


I  i 


■  Ibid..  347-«. 

•6  Wheaton,  376-7. 


410 


THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 


Tb« 

Liability 
of  Sutcf 


After  this  statement,  the  Chief  Justice  proceeded  to  discuss  the  question 
in  which  the  case  before  him  was  to  be  distinguished  in  form,  though  not 
in  substance,  from  that  of  Martin  v.  Hunter,  and  the  conclusion  which  he 
reached  on  this  first  point  is  deeply  imbedded  in  the  jurisprudence  of  the 
United  States,  and  is  hardly  less  familiar  than  the  language  of  the  Consti- 
tution, which  it  interprets. 

After  saying  that  "  jurisdiction  is  given  to  the  Courts  of  the  Union  in 
two  classes  of  cases,"  he  thus  enumerates  them: 

In  the  first,  their  jurisdiction  depends  on  the  character  of  the  cause, 
whoever  may  be  the  parties.  This  class  comprehends  "  alt  cases  in  law 
and  equity  arising  under  this  constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority  "  This 
clause  extends  the  jurisdiction  ot  the  Court  to  all  the  cases  described,  with- 
out making  in  its  terms  any  exception  whatever,  and  without  any  regard 
to  the  condition  of  the  party.  If  there  be  any  exception,  it  is  to  be  implied 
against  the  express  words  of  the  article. 

In  the  second  class,  the  jurisdiction  depends  entirely  on  the  character 
of  the  parties.  In  this  are  comprehended  "  controversies  between  two  or 
more  States,  between  a  State  and  citizens  of  another  State,"  and  "  between 
a  State  and  foreign  States,  citizens  or  subjects."  If  these  be  the  parties, 
it  is  entirely  unimportant  what  may  be  the  subject  of  controversy.  Be  it 
what  it  may,  these  parties  have  a  constitutional  right  to  come  into  the 
Courts  of  the  Union.* 


To  break  the  force  of  this  statement,  counsel  for  defendant  in  error  con- 
tended "  that  a  sovereign,  independent  State  is  not  suable  except  by  its  own 
consent."  Upon  which  statement,  the  Chief  Justice  made  the  following 
comment : 

This  general  proposition  will  not  be  controverted.  But  its  consent  is 
not  requisite  in  each  particular  case.  It  may  be  given  in  a  general  law.  And 
if  a  state  has  surrendered  any  portion  of  its  sovereignty,  the  question 
whether  a  liability  to  suit  be  a  part  of  this  portion,  depends  on  the  inftru- 
nient  by  which  the  surrender  is  made.  If,  upun  a  just  construction  of  that 
instrument,  it  shall  appear  that  the  State  has  submitted  to  be  sued,  then  it 
has  parted  with  the  sovereign  right  of  judging  in  every  case  on  the  justice 
of  its  own  pretentions,  and  has  entrusted  that  power  to  a  tribunal  in  whose 
impartiality  it  confides.* 

After  quoting  the  express  provision  of  the  Constitution,  extending  the 
judicial  power  to  controversies  between  two  or  more  States,  between  citizens 
of  a  State  and  another  State,  and  lietween  citizens  of  a  foreign  State, 
citizens  or  subjects,  the  Chief  Justice  concludes  that  "  the  mere  circumstance 
that  a  State  is  a  party  gives  jurisdiction  to  the  court,"  and  that  "  the  Con- 

'  ft  W  lieaton,  378. 
*lbid..m. 


iiM 


EXTENT  AND  EXERCISE  OP  JUDICIAL   POWER 


411 


stitution  gave  to  every  person  having  a  claim  upon  a  State  a  right  to  sub- 
mit his  case  to  the  Court  of  the  nation."  To  show  the  importance  of  having 
a  case,  even  ahhough  a  State  be  a  party,  passed  upon  by  the  Supreme  Court 
when  the  Constitution,  treaties  or  laws  of  the  United  States  be  drawn  m 
question,  and  the  decision  opposed  to  the  supreme  law  of  the  land,  the  Chief 
Justice  thus  reenforces  the  reasons  already  advanced  by  Mr.  Justice  Story, 
saying : 

What  power  of  the  government  could  be  executed  by  its  own  means, 
in  any  State  disposed  to  resist  its  execution  by  a  course  of  legi-'ation  ?  The 
laws  must  be  executed  by  individuals  acting  within  the  several  States.  If 
these  individuals  may  be  exposed  to  penalties,  and  if  the  Courts  of  the 
Union  cannot  correct  the  judgments  by  which  these  penalties  may  be 
enforced,  the  course  of  the  government  may  be,  at  any  time,  arrested  by 
the  will  of  one  of  its  members.  Each  member  will  possess  a  veto  on  the 
will  of  the  whole.' 

And  again: 

DiflFerent  States  may  entertain  different  opinions  on  the  true  construc- 
tion of  ihe  constitutional  powers  of  Congress.  We  know,  that  at  one  tinie, 
the  assumption  of  the  debts  contracted  by  the  several  States,  durmg  the 
war  of  our  revolution,  was  deemed  unconstitutional  by  some  of  them.  \\  e 
know  too,  that  at  other  times,  certain  taxes,  imposed  by  Congress,  have 
been  pronounced  unconstitutional.  Other  laws  have  been  questioned  par- 
tially while  they  were  supported  by  the  great  majority  of  the  .\merican 
people  We  have  no  assurance  that  we  shall  be  less  divided  than  we  have 
been  States  may  legislate  in  conformity  to  their  opinions,  and  may  enforce 
those  opinions  by  penalties.  It  would  be  hazarding  too  much  to  assert,  that 
the  judicatures  of  the  States  will  be  exempt  from  the  prejudices  by  which 
the  legislatures  and  people  are  influenced,  and  will  constitute  perfectly 
impartial  tribunals  In  many  States  the  judges  are  dependent  for  ofhce  and 
for  salary  on  the  will  of  the  legislature.  The  constitution  of  the  Lnited 
States  furnishes  no  security  against  the  universal  adoption  of  tins  prin- 
ciple. When  we  observe  the  importance  which  that  constitution  attaches 
to  the  independence  of  judges,  we  are  the  less  inclined  to  suppose  that  it 
can  have  intended  to  leave  these  constitutional  questions  to  tribunals  where 
this  independence  may  not  exist,  in  all  cases  where  a  State  shall  prosecute 
an  individual  who  claims  the  protection  of  an  act  of  Congress." 

Taking  up  another  phase  of  the  question  involved  in  the  contention,  the 
Chief  Justice  said: 

It  has  been  also  urged,  as  an  additional  objection  to  the  jurisdiction  of 
the  Couit,  that  cases  between  a  State  and  one  of  its  own  citizens,  do  not 
come  within  the  general  scope  of  the  constitution;  and  were  obviously 
never  intended  to  be  made  cognizable  in  the  federal  Courts.  .    .    . 


:f 


•  Ibid.,  385. 

•  tbid..  386-7. 


I 


How  Caaci 
May  Ariic 
in  I^w  and 
Equity 


412  THE  UNITED  STATES:  A   STUDY   IN   INTEKNATIONAL  ORGANIZATION 

This  is  very  true,  so  far  as  the  jurisdiction  depends  on  the  character  of 
the  parties;  and  the  argument  would  have  great  force  if  urged  to  prove  that 
this  Court  could  not  establish'thc  demand  of  a  citizen  upon  his  State,  but 
is  not  entitled  to  the  same  force  when  urged  to  prove  that  this  Court  cannot 
jnauire  whether  the  constitution  or  laws  of  the  United  States  protect  a 
citizen  from  a  prosecution  instituted  against  him  by  a  State.  If  jurisdic- 
tion depended  entirely  on  the  character  of  the  parties,  and  was  not  given 
where  the  parties  have  not  an  original  right  to  come  into  Court,  that  part 
of  the  2d  section  of  the  3d  article,  which  extends  the  judicial  power  to  all 
c'ses  arising  under  the  constitution  and  laws  of  the  United  States,  would 
acre  surplusage.  It  is  to  give  jurisdiction  where  the  chaiacter  of  the 
parties  would  not  give  it,  that  this  very  important  part  of  the  clause  was 
inserted  .  .  .  If  the  constitution  or  laws  may  be  violated  by  proceedings 
instituted  by  a  State  against  its  own  citizens,  and  if  that  violation  may  be 
such  as  essentially  to  affect  the  constitution  and  the  laws,  such  as  to  arrest 
the  progress  of  government  in  its  constitutional  course,  why  should  these 
cases  be  excepted  from  that  provision  which  expressly  extends  the  judicial 
power  of  the  Union  to  all  cases  arising  under  the  constitution  and  laws?' 

To  this  question,  thus  put,  no  satisfactory  answer  has  as  yet  been  made. 

In  some  respects  the  case  of  Osborn  v.  Bank  of  the  United  States 
(9  Wheaton,  737).  decided  in  1824,  is  to  be  considered  as  an  appeal  from 
the  decision  of  the  Supreme  Court  in  the  case  of  McCulloch  v.  Maryland 
(4  Wheaton,  316),  decided  five  years  earlier,  holding  that  a  State  law  tax- 
ing a  branch  of  the  bank  of  the  United  States  in  that  State  is  a  tax  upon 
an  agency  of  the  United  States  and  is  unconstitutional,  null  and  void.  The 
decision  in  the  McCulloch  case  was  re-examined  and  affirmed.  In  addition, 
the  court  held  that  a  suit  against  officers  of  a  State,  enjoining  them  from 
proceeding  against  the  bank,  was  not  a  suit  against  the  State  in  the  sense 
of  the  11th  Amendment,  unless  the  State  itself  were  a  party  to  the  record. 
While,  however,  the  Osborn  case  is  an  authority  for  these  views,  for  pres- 
ent purposes  it  is  cited  to  show  when  and  how  a  case  arises  in  law  and  equity 
under  the  Constitution,  treaties  and  laws  of  the  United  States. 

Counsel  for  the  defendants  had  insisted  that  it  was  not  such  a  case; 
counsel  for  the  plaintiff  that  it  was;  and,  meeting  the  issue  as  presented,  the 
court  examined  the  question  and  rejected  the  defendant's  thesis.  Speaking 
for  the  court,  Mr.  Chief  Justice  Marshall  said: 

The  appellants  contend,  that  it  does  not.  because  several  questions  may 
arise  in  it.  which  depend  on  the  general  principles  of  the  law,  not  on  any 

act  of  Congress.  ,...■•  r     i. 

If  this  were  sufficient  to  withdraw  a  case  from  the  jurisdiction  ot  the 
federal  Courts,  almost  every  case,  although  involving  the  construction  of  a 
law.  would  he  withdrawn ;' and  a  clause  in  the  constitution,  relating  to  a 
subject  of  vital  importance  to  the  government,  and  expressed  in  the  most 
comprehensive  terms,  would  be  construed  to  mean  almost  nothing.' 

'  (>  \\  healon,  jyO-2. 
■y  WlitatoM,  819-20. 


EXTENT  AND  EXERCISE  OF  JUDICIAL   POWER 


413 


The  Chief  Justice  thereupon  asks  it  juiisdiction  is  excluded  because  the 
case  involves  questions  depending  on  general  principles,  and  holds  that  it 
is  not,  saying  and  declaring  the  law  on  this  point : 

A  cause  may  depend  on  several  questions  of  fact  and  law.  Some  of 
these  may  depend  on  the  construction  of  a  law  of  the  United  States ;  others 
on  principles  unconnected  with  that  law.  If  il  be  a  sufficient  foundation 
for  jurisdiction,  that  the  title  or  right  set  up  by  the  party,  may  be  defeated 
by  one  cvinstruction  of  the  constitution  or  law  of  the  Lnited  States,  and 
sustained  bv  the  opposite  consiruction.  provided  the  facts  necessary  to  sup- 
port the  action  Ik  made  out.  then  all  the  other  questions  must  be  decided 
as  incidental  to  this,  wl  ich  gives  that  jurisdiction.  1  hose  other  questions 
cannot  arrest  the  procet  ings.  Under  this  construction,  the  judicial  power 
of  the  Union  extends  effectively  and  beneficially  to  that  most  important 
class  of  cases,  which  depend  on  the  character  of  the  cause.  On  the  oppo- 
site construction,  the  judicial  power  never  can  be  extended  to  a  whole  case, 
as  expressed  by  the  constitution,  but  to  those  parts  of  cases  only  winch 
present  the  particular  question  involving  the  construction  of  the  constitu- 
tion or  the  law.  We  say  it  never  can  be  extended  to  the  whole  case, 
because,  if  the  circumstance  that  other  points  are  involved  m  it.  sball 
disable  Congress  from  authorizing  the  Courts  of  the  Union  to  take  juris- 
diction of  the  original  cause,  it  equally  disables  Congress  from  authorizing 
those  Courts  to  take  jurisdiction  of  the  whole  cause,  on  an  appeal,  and 
thus  will  be  restricted  to  a  single  question  in  that  cause;  and  words  obvi- 
ously intended  to  secure  to  those  who  claim  rights  un.ler  the  constitution, 
laws  or  treaties  of  the  United  States,  a  trial  in  the  federal  Courts  will  be 
restricted  to  the  insecure  remedy  of  an  appeal  upon  an  insulated  point, 
after  it  has  received  that  shape  which  may  be  given  to  it  by  another  tri- 
bunal, into  which  he  is  forced  against  his  will 

We  think,  then,  that  when  a  question  to  which  the  judicial  power  ot  the 
Union  is  extended  by  the  constitution,  forms  aii  ingredient  of  the  original 
cause,  it  is  in  the  power  of  Congress  to  give  the  Circuit  Courts  jurisdiction 
of  that  cause,  although  other  questions  of  fact  or  of  law  may  be  involved 
in  it' 

It  requires  no  comment  to  show  the  necessity  of  such  a  decision,  as  other- 
wise the  purpose  of  the  Constitution  would  be  frustrated,  in  that  cases  in 
law  and  equity  arising  under  the  Constitution,  treaties  or  laws  of  the 
United  States  would  not  be  examined  by  the  Supreme  Court,  either 
originally  or  upon  appeal,  and  the  Government  of  the  States  would  be 
unable  to  defend  itself  in  many  cases  against  the  acts  of  the  States.  Such 
a  construction  would  not  extend  the  judicial  power  of  the  United  States 
but  would  withdraw  such  power  from  cases  in  law  and  equity  arising  under 
the  Constitution,  laws  and  treaties  of  the  United  States. 

The  question  frequentlv  arises  whether  the  judicial  power  of  the  United 
States  is  concurrent  with  that  of  the  States;  or  whether  it  is,  in  its  nature. 
exclusive.     Advocates  of  a  highly  centralized  government  insist  that  the 

'  Ibid..  821-3. 


fs  Judicial 
Power 
Corcurrent 
or  Exclusive? 


;^ll 


I 


414  THE  UNITED  STATia:  A  STUDY  IN  INTEENATIONAL  OEOANIIATION 

judicial  power  of  the  United  States  is  exclusive  wherever  it  attaches, 
whereas  advocates  of  the  States  insist  that  the  States  retained  the  right  to 
the  exercise  of  judicial  power  in  all  cases  where  it  has  not  been  renounced, 
or  where  the  Government  of  the  Union,  in  pursuance  of  the  Constitution, 
has  not  invested  the  judicial  power  exclusively  in  the  courts  of  the  Union. 
The  framers  of  the  Constitution,  its  classic  expounders,  the  Congress  and  the 
Supreme  Court,  seem  to  belong  to  the  latter  class.  As  far  as  the  framers 
of  the  Constitution  and  the  Congress  are  concerned,  it  is  only  necessary  to 
point  to  Section  9  of  the  judiciary  act  of  September  24.  1789.  which  rec- 
ognizes concurrent  jurisdiction  by  declaring,  among  othf-r  things,  that  the 
district  courts  of  the  Jnited  States  "  shall  also  have  cognizance,  concurrent 
with  the  coun.  of  the  several  States,  or  the  circuit  courts,  as  the  case 
may  be,  of  all  causes  where  an  alien  sues  for  a  tort  only  in  violation  of  the 
law  of  nations  or  a  treaty  of  the  United  States."  ' 

Members  of  the  committee  framing  this  act  had  been  members  of  the 
Federal  Convention.  The  hand  that  drew  it  was  Oliver  Ellsworth,  mem- 
ber of  the  Federal  Convention,  member  of  the  State  Convention  of  Con- 
necticut for  the  ratification  of  the  Constitution,  first  United  States  Senator 
from  his  State  under  the  Constitution,  and  soon  to  be  Chief  Justice  of  the 
Supreme  Court  of  the  United  States.  Alexander  Hamilton  was  no  friend 
of  the  States.  He  wished  to  blot  them  out  of  existence.  In  the  plan  of 
the  Constitution  which  he  proposed  to  the  Federal  Convention  they  would 
have  been  little  more  than  provinces,  with  governors  appointed  for  life  or 
during  good  behavior  with  a  veto  upon  the  laws  of  the  State,  and  appointed 
by  a  President  holding  office  for  life  or  during  good  behavior.  Yet  he 
admitted  freely,  in  The  Federalist,  that  the  States  under  the  Constitution 
were  to  be  considered  as  sovereign  bodies,  possessing  the  powers  which  they 
did  not  expressly  or  impliedly  grant  to  the  Government  of  the  Union,  or 
A-hich  tbey  did  not  themselves  renounce.  In  the  82d  number  of  The  Fed- 
eralist he  speaks  of  the  Government  as  composed  of  distinct  sovereignties, 
and,  discussing  the  relation  of  the  State  to  the  Federal  judiciary,  he  asks: 
"  Is  this  to  be  exclusive  or  are  those  courts  to  possess  a  concurrent  juris- 
diction? If  the  latter,  in  what  relation  will  they  stand  to  the  national  tri- 
bunals?" These  inquiries,  which,  he  says,  "we  meet  with  in  the  mouths 
of  men  of  sense,"  he  thus  ar.svers: 

The  principles  established  in  a  former  paper  teach  us.  that  the  states 
will  retain  all  pre-existing  authorities,  which  may  not  be  exclusively  dele- 
gated to  the  federal  head ;  and  that  this  exclusive  delegation  can  only  exist 
in  one  of  three  cases:  where  an  exclusive  authority  is,  in  express  terms, 
granted  to  the  union;  or  where  a  particular  authority  is  granted  to  the 


'  1  Statutes  at  Large,  77. 


EXTENT   AND  EXERCISE  OF  JUDICIAL   POWER 


415 


union,  and  the  exercise  of  a  like  aulhority  is  prohibited  to  the  states ;  or, 
where  an  authority  is  granted  to  the  union,  with  which  a  similar  authority 
in  the  states  would  be  utterly  incompatible.  Though  these  principles  may 
not  apply  with  the  same  force  to  the  judiciary,  as  to  the  legislative  power; 
yet  I  am  inclined  to  think,  that  thev  are  in  the  main,  just  with  respect  to 
the  former,  as  well  as  the  latter.  And  under  this  impression  I  shall  lay  it 
down  as  a  rule,  that  the  state  courts  will  retain  the  jurisdiction  they  now 
have,  unless  it  appears  to  be  taken  away  in  one  o!  the  enumerated  modes.' 

These  are  also  the  views  of  the  Supreme  Court,  and  indeed,  in  the  case 
of  ClaiHin  v.  Houseman  (93  U.  S..  130).  decided  in  1876,  Mr.  Justice 
Bradley,  speaking  for  a  unanimous  court,  refers  to  this  very  number  of  The 
Federalist  and  appears  to  approve  not  merely  the  view  which  has  been 
quoted,  but  Hamilton's  entire  conception  and  statement  of  the  concurrent 
powers  of  the  Federal  and  of  the  State  courts.  And  the  approval  of  the 
Supreme  Court  is  not  indirect,  but  express  and  direct,  in  that  it  thus  quotes 
and  approves  the  Hamiltonian  conception: 

It  was  fully  examined  in  the  eighty-second  number  of  "  The  Federalist." 
by  Alexander  Hamilton,  with  his  usual  analytical  power  and  far-seeing 
genius ;  and  hardly  an  argument  or  a  suKRcstion  has  been  made  since  which 
he  did  not  anticipate.  After  showing  that  exclusive  delegation  of  authority 
to  the  Federal  government  can  arise  only  in  one  of  three  ways, — either  by 
express  grant  of  exclusive  authority  over  a  particular  subject;  or  by  a 
simple  grant  of  authority,  with  a  subsequent  prohibition  thereof  to  the 
States ;  or,  lastly,  where  an  authority  granted  to  the  Union  would  be  utterly 
incompatible  with  a  similar  authority  in  the  States,— he  says,  that  these 
principles  may  also  apply  to  the  judiciary  as  well  as  the  legislative  power. 
Hence,  he  infers  that  the  State  courts  will  retain  the  jurisdiction  they  then 
had,  unless  taken  away  in  one  of  the  enumerated  modes.  lUit,  as  their 
previous  jurisdiction  could  not  by  possibility  extend  to  casts  which  might 
grow  out  of  and  be  peculiar  to  the  new  constitution,  he  considered  that, 
as  to  such  cases.  Congress  might  give  the  Federal  courts  sole  jurisdiction. 
"  I  hold."  says  he,  "  that  the  State  courts  will  be  divested  of  no  part  of 
their  primitive  jurisdiction,  further  than  may  relate  to  an  appeal;  and  I 
am  even  of  opinion,  that  in  every  case  in  which  ihey  were  not  expressly 
excluded  by  the  future  acts  of  the  national  legislature,  they  will,  of  course. 
take  cognizance  of  the  causes  to  which  those  acts  may  give  birth.  This  I 
infer  from  the  nature  of  judiciary  power,  and  from  the  general  genius  of 
the  system.  The  judiciary  power  of  every  government  looks  hi  yond  its 
own  local  or  municipal  laws,  and.  in  civil  cases,  lays  hold  of  all  subjects  of 
litigation  between  parties  within  its  jurisdiction,  though  the  causes  of  dis- 
pute are  relative  to  the  laws  of  the  most  distant  part  of  the  globe,  . 
When,  in  addition  to  this,  we  consider  the  State  governments  and  the 
national  govenuncnt,  as  they  truly  are,  in  the  light  of  kindred  systems,  and 
as  parts  of  ON'I':  WHOLF,.  the  inference  seems  to  be  conclusive,  that  the 
State  courts  w(,iil{l  have  concurrent  jurisdiction  in  all  cases  ,-irising  under 
the  laws  of  the  Union,  where  it  was  not  expressly  prohibited." ' 

'  Thf  Federalist.  1802  ed..  Vol.  1 1,  pp   24.V-4. 
»93  U.  S.  138. 


m 

N.4 


i 

i 


ir 


m 


^ 


'-■^ 


416  THE  UNITED  STATES:  A  STUDY    IN   INTEtNATION/.L  OICANUATION 

After  referring  to  the  passage  of  the  jiuliciary  act.  which  has  been  quoted, 
and  to  the  exact  language  of  the  Constitution.  Mr.  Justice  Bradley  next 
invokes  the  authority  of  the  great  Chief  Justice  himself.    Thus: 

In  Cohens  v.  Fin/tnio.  6  Wheat.  415.  Chief  Justice  Marshall  demon- 
strates the  necessity  of  an  appellate  power  in  the  Federal  judiciary  to  revise 
the  decisions  of  State  courts  in  cases  arising  under  the  Constitution  and 
laws  of  the  United  States,  in  order  that  the  constitutional  grant  of  judicial 
pow.r.  extending  it  to  all  such  cases,  may  have  full  efTcct.  He  says.  I  he 
propriety  of  intrusting  the  construction  of  the  Constitution  ami  laws,  made 
In  pursuance  thereof,  to  the  judiciary  of  the  Union,  has  not.  ^c  helutvc  as 
vet  been  drawn  in  question.  It  seems  to  be  a  corollary  rom  this  political 
kxiom.  that  the  Federal  courts  should  either  possess  exclusive  Junwiction 
in  such  cases,  or  a  power  to  revise  the  judgment  rendered  in  them  by  the 
State  tribunals.  If  the  Federal  and  State  courts  have  concurrent  jurisdic- 
tion in  all  cases  arising  under  the  Constitution,  laws,  and  treaties  of  the 
United  States,  and  if  a  case  of  this  description  brought  in  a  State  court 
cannot  be  rtmoved  tefore  judgment,  nor  revised  after  judgment  then  the 
construction  of  the  Constitution,  laws,  and  treaties  of  '»^«  ^ "!' "^'i j'^'!^ 
is  not  confided  particularly  to  their  judicial  department,  but  is  confided 
equally  to  that  department  and  to  the  State  courts,  however  they  may  be 
constituted.' 

The  Clafflin  case  was  one  to  test  the  nature  and  extent  of  concurrent 
jurisdiction  on  the  part  of  the  State  and  Federal  courts,  inasmuch  as  it 
involved  a  question  of  bankruptcy,  which,  under  the  bankruptcy  law  of  the 
United  States,  passed  by  Congress  pursuant  to  Article  I.  Section  8,  of  the 
Constitution,  invests  Congress  with  the  power  "  to  establish  .  .  .  uniform 
Laws  on  the  subject  of  Bankruptcies  throughout  the  United  States."  Speak- 
ing for  the  court.  Mr.  Justice  Bradley  said  and  concluded: 

We  hold  that  the  assignee  in  bankruptcy,  under  the  Bankrupt  Act  of 
1867  as  it  stood  before  the  revision,  had  authority  to  bring  a  suit  in  the 
State  courts,  wherever  those  courts  were  invested  with  appropriate  juris- 
diction, suited  to  the  nature  of  the  case.' 

The  last  case  to  be  considered  in  this  connection  is  that  of  Ames  v. 
Kansas  (111  U.  S..  449).  decided  in  1884.  in  which  the  court  had  occasion 
to  consider  the  original  and  appellate  jurisdiction  of  the  United  States,  and 
to  establish  the  principle  that,  even  in  those  cases  in  which  the  Supreme 
Court  has  original  jurisdiction  by  the  Constitution,  the  term  "  original     is 

not  necessarily  exclusive.  .    ,.  • 

After  referring  to  the  judicial  clause  of  the  Constitution,  to  the  judiciary 
act  of  1789.  passed  within  six  months  after  the  inauguration  of  the  Gov- 
ernment under  the  Constitution,  vesting  suits  against  Ambassadors  in  the 

■  93  U.  S..  142. 
•  Ibid..  143. 


EXTENT   AND   EXKHCISE  OF    JUDICIAL   POWER 


417 


Supreme  Court  as  could  tie  brouRht  against  amlawadors.  "  and  original, 
but  not  exclusive,  jurisdiction  o(  all  suits  brought  by  ambassadors,  or  other 
public  ministers,  or  to  which  a  consul,  or  vice-consul  shall  be  a  party."  Mr. 
Chief  Justice  Waite.  speaking  for  a  unanimous  court,  said: 

It  thus  appears  that  the  first  Congress,  in  which  were  many  who  had 
been  leading  and  intluential  nu-mtH-rs  ()f  the  convention,  and  who  were 
familiar  with  the  discussions  that  pricfdcd  the  adoption  of  the  Constitu- 
tion by  tlie  States  and  with  the  objections  urged  against  it.  did  not  under- 
sfaiul  that  tlic  original  jurisdiction  vested  in  the  Supreme  Court  was  nece*- 
sarily  exclusive.  That  jurisdiction  included  all  cases  affecting  ambassadors, 
other  puhlic  ministers  and  consuls,  and  those  in  which  a  State  was  a  party. 
The  evident  purpose  was  to  open  and  keep  open  the  highest  court  of  the 
nation  for  the  determination,  in  the  first  instance,  of  suits  involving  a  State 
or  a  diplomatic  or  commercial  representative  of  a  foreign  government.  So 
much  was  due  to  the  rank  and  dignity  of  those  for  whom  the  provision 
was  made ;  but  to  compel  a  State  to  resort  to  this  one  tribunal  for  the 
redress  of  all  its  grievances,  or  to  deprive  an  ambassador,  public  minister 
or  consul  of  the  privilege  of  suing  in  any  court  he  chose  having  jurisdic- 
tion of  the  parties  and  the  subject  matter  of  his  action,  would  be,  m  many 
cases,  to  convert  what  was  intended  as  a  favor  into  a  burden.' 

The  Chief  Justice  and  his  brethren  were  of  opinion  that  the  purpose  of  the 
framers  of  the  Constitution  would  lie  subserved  if  the  parties  entitled  to 
invoke  the  original  jurisdiction  of  the  Supreme  Court  could  not  be  made 
defendants  in  another  tribunal.    Thus,  the  Chief  Justice  said: 

Acting  on  this  construction  of  the  Constitution,  Congress  took  care  to 
provide  that  no  suit  should  l>e  brought  against  an  amlmssador  or  other  public 
minister  except  in  the  Supreme  Court,  but  that  he  might  sue  in  any  court 
he  chose  that  was  open  to  him.  As  to  consuls,  the  commercial  represen- 
tatives of  foreign  governments,  the  jurisdiction  of  the  Supreme  Court  was 
made  concurrent  with  the  District  Courts,  and  suits  of  a  civil  nature  could 
be  brought  against  them  in  either  tribunal  ...  In  this  way  States, 
ambassadors,  and  public  ministers  were  protected  from  the  compulsory 
process  of  any  court  other  than  one  suited  to  their  high  positions,  but  were 
left  free  to  seek  redress  for  their  own  grievances  in  any  court  th.it  had  the 
requisite  iurisdiction.  No  limits  were  set  on  their  powers  of  choice  in  this 
particular.  This,  of  course,  did  not  prevent  a  State  from  allowing  itself 
to  Ik;  sued  in  its  own  courts  or  elsewhere  in  any  way  or  to  any  extent  it 
chose.' 

After  an  examination  of  the  precedents,  Mr.  Chief  Justice  Waite  thus  con- 
cluded the  portion  of  the  opinion  material  to  the  present  purpose: 

In  view  of  the  practical  construction  put  on  this  provision  of  tlie  Con- 
stitution by  Congress  at  the  very  moment  of  the  organizatio:i  of  the  gov- 


c    9' 


1  "^  § 

m 


m\ 


'111  U    S..  AM. 
•  Ibid..  464-5. 


1^ 


M^i' 


Confusion 
over 

Pgliticil  V. 
ludkul 
Quntiooa 


418  Till  UNITED  statu:  a  ITUDY   in   INTEtNATlONAL  OBCANIZATION 

eminent,  and  of  the  siftnificant  fact  that  from  1780  until  now  no  court  of 
the  United  State*  has  ever  in  its  actual  adjudication*  determined  to  the 
contrary  we  are  unable  to  say  that  it  is  not  within  the  power  of  Congress 
to  Rrant'  to  the  inferior  courts  of  the  United  States  jurisdiction  in  case* 
where  the  Supreme  Court  has  been  vested  by  the  Constitution  with  original 
jurisdiction  It  rest*  with  the  legislative  department  of  the  government  to 
tay  to  what  extent  such  grant*  shall  be  made,  and  it  may  safely  l)c  .issumed 
that  nothing  will  ever  he  done  to  encroach  upon  the  high  privileges  of 
those  for  whose  protection  the  constitutional  provision  was  intended.  At 
any  rate,  we  are  unwilling  to  say  that  the  power  to  make  the  granr  does 
not  exist.' 

In  the  Federal  Convention  which  adopted  the  Constitution,  it  was  pro- 
posed to  establish  a  council  of  revision  to  pass  upon  the  acts  of  the  State 
legislatures  and  upon  those  of  the  Congress,  and.  in  appropriate  cases,  to 
negative  the  acts  of  each.  Omitting  details  and  the  various  forms  which 
this  proposition  assumed,  it  is  sufficient  for  present  purposes  to  state  that, 
in  each  instance,  this  bo<ly  was  to  be  composed  in  part  of  the  national  judi- 
ciary, thus  investing  its  members  with  political  functions.  This  proposi- 
tion, in  various  forms  and  at  various  times,  was  urged  upon  the  Convention 
by  the  ablest  members,  such  as  Messrs.  Madison.  Wilson,  and  Ellsworth.  The 
Convention,  however,  wiser  than  its  wisest  members,  insisted  -.tpon  the  sepa- 
ration of  judicial  and  political  powers,  and.  after  much  debate  and  delibera- 
tion, rejected  the  proposition,  for  the  very  substantial  reasons  contained  in 
a  few  of  the  many  passages  which  could  be  quoted  from  Mr.  Madison's 
Notes  of  the  debates. 

1  M'.  Chorum  did  not  see  the  advantage  of  employing  the  Judges  in  this 
way.  As  Judges  they  are  not  to  be  presumed  to  possess  any  peculiar  knowl- 
edge of  the  mere  policy  of  public  measures.  .  .  ,    .    ^        ,  ,  „ 

2  M'  Gerry  did  not  expect  to  see  this  point  which  had  undergone  full 
discussion,  again  revived.  ...  The  motion  wa-  liable  to  strong  objec- 
tions. It  was  combining  &  mixing  together  the  Legislative  &  the  other 
departments.  It  was  establishing  an  improper  coalition  lietwcen  the 
Executive  &  Judiciary  depaitments.  It  was  making  Statesmen  of  the 
Judges;  and  setting  iheni  up  as  the  guardians  of  the  Rights  of  the  people. 
...  It  was  ni.iking  the  Expositors  of  the  Laws,  the  Legislators  which 
ought  never  to  he  done.  ,        ,  •  • 

3.  M'.  Strong  thought  with  M'.  Gerry  that  the  power  of  making  ought  to 
be  kept  distinct  from  that  of  expounding,  the  laws.  No  maxim  was  hetter 
established.  The  judges  in  exercising  the  function  of  expositors  might  be 
intluenccd  by  the  part  they  had  taken,  in  framing  the  laws. 

4.  M'.  L.  Martin  considered  the  association  of  the  Judges  with  the  Execu- 
tive as  a  dangerous  innovation;  ...  A  knowledge  of  Mankind,  and  of 
Legislative  affairs  cannot  be  presumed  to  belong  in  a  higher  degree  to  the 
Judges  than  to  the  Legislature.  And  as  to  the  Constitutionality  of  the 
laws,  that  point  will  come  before  the  Judges  in  their  proper  official  charac- 


•111  U.  S„469. 


BXTINT  AMD  EXERCISE  OF    JUWCIAl,  POWEI 


419 


ter.    In  thit  character  they  have  a  neffative  on  the  laws.    Join  them  with 
the  Executive  in  the  Rev»»ion  and  they  will  have  a  double  negative 

5.  M'.  Hrrry  had  rather  Rive  the  Executive  an  absolute  neRative  for  its 
own  defence  than  thun  to  blend  tocelher  the  Judiciary  &  Executive  depart- 
ments. It  will  bind  them  logether  in  an  nflfcnsive  and  defensive  alliance 
»g".  the  Legislature,  and  render  the  latter  unwilling  to  enter  into  a  contest 
with  them. 

6.  M'.  Chorum  .Ml  afercc  that  a  check  on  the  Legislature  is  necessary. 
But  there  are  two  objection!-  ,ik"  admitting  the  Jud^c*  to  share  in  it  which 
no  observations  on  the  other  suit-  scorn  to  obviate.  The  1".  is  that  the  Judges 
ought  to  carry  into  the  exposition  of  the  laws  no  prepossessions  with 
regard  to  them  2'.  that  as  the  judges  will  outnumber  the  Executive,  the 
revisionary  check  would  Ik-  throw  n  entirely  out  of  the  Executive  hands,  and 
instead  of  enabling  him  to  defend  him«elf.  would  enable  the  Judges  to 
sacrifice  hitn. 

7.  M'.  Rutlidge  thought  the  Judges  of  all  men  the  most  unfit  to  be  con- 
cerned in  the  revisionary  Council.  The  Judges  ought  never  to  give  their 
opinion  on  a  law  till  it  comes  before  them.  He  thought  it  equally  unneces- 
sary. The  Executive  could  advise  with  the  officers  of  State,  as  of  war, 
finance  &c.  and  avail  himself  of  their  information  and  opinions  ' 

8.  M'.  Sherman.  Can  one  man  f)c  trusted  better  than  all  the  others  if 
they  all  agree?  This  was  neither  wise  nor  safe.  He  disapproved  of 
Judges  meddling  in  politics  and  parties.' 

It  was  clearly  the  intention  of  the  framcrs  that  the  judiciary  should  not 
busy  itself  with  politics,  and  repeated  decisions  of  the  Supreme  Court  have 
given  effect  to  their  intention,  that  the  judicial  power  does  not  extend  to 
political  questions.  Controversies  between  States  were  not  justiciable  before 
the  Constitution  of  the  L'nited  States.  They  were  ix)litical  questions,  and 
as  such  they  were  not  submitted,  or  were  not  regarded  as  capable  of  sub- 
mission, to  a  court  of  justice.  This  fact  was  adverted  to  by  Mr.  Justice 
Bradley  in  Hans  v.  Louisiana  (134  U.  S.,  1,  15).  decided  in  1889,  who  said, 
on  behalf  of  the  court: 

The  truth  is,  that  the  cognizance  of  suits  and  actions  unknown  to  the 
law,  and  forbidden  by  the  law,  was  not  contemplated  by  the  Constitution 
when  establishing  the  judicial  power  of  the  United  States. 

Had  he  stopped  here,  questions  at  that  time  considered  political  would  have 
remained  so,  but  he  adds : 


•t* 


■f 


•I 


Some  things,  undo'ibtedly,  were  made  justiciable  which  were  not  knoA-n 
as  such  at  the  conmion  law;  such,  tor  example,  as  controversies  betweeii 
States  as  to  boundary  lines,  and  other  questions  admittmg  of  judicial 
solution. 


'  Doeumenlaryi  History  of  the  Constitution,  V 
•  /bid.,  p.  SJy.'    Session  of  August  I5th. 


Ill,  pp.  391-9.    Session  of  July  2l8t 


How 

Tolitical 

8u<-!itiont 
ecome 
Judicial 


...■i#^ 


420  THE   UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  OKGANIZATION 

The  distinction,  therefore,  is  not  hard  and  fast.  Things  political  may 
become  justiciable,  and  therefoic  submitted  to  a  court  for  decision;  and 
the  question  arises,  how  this  transformation  may  be  brought  about.  For- 
tunately, we  do  not  need  to  indulge  ir.  speculative  or  theoretical  reasoning, 
for  we  have  on  this  very  point  the  authority  of  the  Supreme  Court  of  the 
United  State?,  showing  (i)  how  political  pow«r,  vested  originally  in  the 
crown,  became  judicial  by  submission  to  courts  of  justice;  (2)  that  con- 
troversies between  the  colonies,  settled  as  such  by  the  King  in  Council  be- 
cause they  had  no  other  common  superior,  became  by  the  same  process 
judicial  when  submitted  to  a  court  of  justice:  and  (3),  that  the  agreement 
by  the  States  of  the  American  Union  to  submit  their  controversies  to  courts 
of  justice  made  them  justiciable. 

In  Rhode  Island  v.  Massachusetts  (12  Peters.  657),  decided  in  1838,  this 
whole  question  was  examined,  the  distinction  between  judicial  and  political 
questions  oudined  and  defined  and  the  process  by  which  questions,  originally 
political,  could  become  justiciable,  and  therefore  judicial,  stated  and  applied. 
In  proof  of  the  first  of  these  contentions,  Mr.  Justice  Baldwin,  delivering 
the  opinion  of  the  court  in  this  case,  quotes  an  early  English  statute  and 
Coke's  Institutes,  of  hardly  less  authority.  The  learned  Justice  quotes  the 
statute  of  20  Edward  III.  Chapter  I.  The  passages  from  Coke's  Institutes, 
referring  to  and  summarizing  this  among  other  statutes,  are  as  follows: 

First,  where  Bracton  saith,  Habet  rex  plurcs  curias  in  quibus  divcrsae 
actiones ' tcrminantur ;  Hereby,  and  in  effect  by  Britten,  and  this  conclusion 
foUoweth,  that  the  King  hath  committed  and  distributed  all  his  whole  power 
of  judicature  to  t-verall  Courts  of  Justice,  and  therefore  the  judgement  must 
be  idea  coiisideratiim  est  per  Curiam.  And  herewith  do  agree  divers  Acts  of 
parliament  and  Book  cases,  some  whereof,  for  illustration,  we  will  briefly 
remember ;  and  leave  the  judicious  reader  to  the  rest 

8  H.  4.  the  King  hath  committed  all  his  power  judiciall.  some  m  one 
Court,  and  some  in  another,  so  as  if  any  would  render  hiniselfe  to  the  judge- 
ment of  a  King  in  such  case  where  the  king  hath  committed  all  his  power 
judiciall  to  others,  such  a  render  should  be  to  no  effect.  An  8  H.  6.  the 
king  doth  judge  bv  his  Judges  (the  king  having  distributed  his  power 
judiciall  to  several  Courts)  And  the  king  hath  wholly  left  matters  of  judica- 
ture according  to  his  lawes  to  his  Judges.' 

Therefore,  as  the  interpretation  of  an  agreement  is  a  judicial  question,  the 
compact  between  Penn  and  Lord  Baltimore  concerning  the  boundaries  of 
Pennsylvania,  Delaware  and  Maryland  was  referred  to  a  court  of  justice, 
because  it  was  an  agreement,  and  to  that  particular  court  of  justice  c.W-"^ 
the  High  Court  of  Chancery,  because  that  tribunal  alone  enforced  the  specific 

»  Sir  Edward  Coke.  The  Fourth  Part  of  tht  Institutes  of  the  Uws  of  England,  1644. 
pp.  70-71. 


EXTENT  AND   EXERCISE  OF   JXn>ICIAL   POWER 


421 


performance  of  an  agreement,  as  prayed  by  Penn  in  that  case  Where 
there  was  no  aRreement.  the  king  in  council  took  jurisdiction  and  deeded  by 
virtue  of  his  political  prerogative,  with  the  advice  of  his  members,  who  sat 

as  advisers.  o  1 1    •    *u 

From  the  detailed  and  closely  knit  argument  of  Mr.  Justice  Baldwm  the 
foUowing  passage  may  be  quoted,  as  showing  the  process  by  which  he  r-ached 
his  conclusion,  as  well  as  the  conclusion  itself : 

The  kinc  had  no  jurisdiction  over  boundary  within  the  realm,  without 
he  had  it  in  all  his  dominions,  as  the  absolute  owner  of  the  territory    from 
whom  all  title  and  power  must  flow.  1  Bl.  Com.  24l ;  Co.  L.tt.  1;  Hob,  322, 
7  DC   D  76:  Cowp-  205-11 ;  7  Co.  17.  b.,  as  the  supreme  eg.slator;  save  a 
limited  power  in  parliament      He  could  make  and  unmake  boundaries  m 
am   oart  of  his  dominions,  except  in  proprietary  P^oY'""*- .  "^.^''fjf.'''? 
this  power  by  treaty,  as  in  1763.  by  limitmg  the  colomes  to  the  M'^s'ssippi. 
whos^e  charters  extended  to  the  South  sea;  by  proclamation,  which  was  a 
supreme  law.  as  in  Florida  and  Georgia.  12  Wheat.  524;  1  '-aws  L.  S.  443- 
Sr  by  orde    in  council,  as  between  Massachusetts  and  New  Hampshire 
cited  in  the  argumem.    But  in  all  cases  it  was  by  his  political  power,  wh  ch 
was     ompetenfto  dismcmb.--  royal    though   it  was  ""»  exercised  o.  the 
charte    ^or  proprietary  provinces.    M'Imosh  v.  Johnson.  8  ^^hf  ton  3^  .In 
counc,       ;e  king  had  nb  original  judicial  power.  1  V es.  sen.  447.    He  decided 
on  appeals  frcfm  the  colonial  courts,  settled  boundaries,  in  virtue  of  his 
prerogative,  where  there  was  no  agreement;  but  if  there  ,s  a  disputed  agree- 
ment   the  king  cannot  decree  on  it.  and  therefore,  the  counc.    remit  it  to 
S^  determined^in  another  place,  on  the  foot  of  the  contract       Ves.  sen.  447. 
In  virtue  of  his  prerogative,  where  there  was  no  agreement   1  Ves  sen.  ZU3. 
the  king  acts  not  as  a  judge,  but  as  the  sovereign  acting  by  the  advice  of 
his  counsel,  the  members  whereof  do  not  and  cannot  s^  as  ,udges_    By  the 
Sute^  E.  3.  ch.  1.  it  is  declared,  that  "  the  king  hath  delegated  his  whole 
iudicial  power  to  the  judges,  all  matters  of   judicature  according  to  the 
aws-'  1  Ruff  2^:  4  Co.  Inst.  70.  74;  he  had.  therefore  none  to  exercise: 
and  judges  though  members  of  council,  did  not  sit  in  judicature,  but  merely 
as  his  advisers.' 

And  after  an  elaborate  examination  of  English  precedent  and  cases.  itKluding 
the  judicial  interpretation  of  compacts  between  nations.  Mr.  Justice  Baldwm 
concluded : 

From  this  view  of  the  law  of  England,  the  results  are  clear,  that  the  settle- 
menT of  boundaries  by  the  king  in  council,  is  by  his  prerogative;  vv-^uch  ., 
political  power  acting  on  a  political  question  between  dependent  corpora- 
tions or  proprietaries,  in  bis  dominions  without  the  realm.  ^^  hen  it  is  (In; 
n  chancery,  it  is  by  its  judicial  power,  in  "  judicature  according  to  the  U^^ 
Lnd  necessarily  a  judicial  question,  whether  it  relates  to  the  boundary  of 
provinces  according  to  an  agreement  between  the  owners,  as  Penn  v.  Balti- 
more (1  Ves  sen.  448) :  the  title  to  a  feudal  kingdom,  in  a  suit  appropriate 


SI 


&^ 


'  U  Peters,  739. 


Iff 


.f#- 


422  THE  UNITED  STATES:  A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

to  equity,  where  the  feudal  king  appears  and  pleads,  as  in  the  case  of  the 
Isle  of  Man ;  or  on  an  aRrtement  between  a  foreign  sovereign  and  the  East 
India  Company,  in  their  mere  corporate  capacity.  But  when  the  company 
assumed  the  character  of  a  sovereign,  assert  the  agreement  to  be  a  "  federal 
treaty,"  between  them  and  the  plaintitf,  as  neighbouring  sovereigns,  each  inde- 
pendent, and  the  subject  matter  to  be  peace  and  war,  political  in  its  nature, 
on  which  no  municipal  court  can  act  by  tiie  law  of  nations,  chancery  has  no 
jurisdiction  but  to  dismiss  the  bill.  Not  because  it  is  founded  on  a  treaty, 
but  because  the  defendant  refused  to  submit  it  to  judicial  power ;  for,  had  the 
company  not  made  the  objection,  by  their  answer,  the  court  rnust  have  pro- 
ceeded as  in  The  King  of  Spain  v.  Machado  [4  Russell,  225],  ai.d  decreed 
on  the  validity,  as  well  as  the  construction  of  the  treaties.  The  court,  in  one 
case,  could  not  force  a  sovereign  defendant  to  submit  the  merits  of  the  case  tc 
their  cognizance;  but  in  the  other,  when  he  was  plaintiff,  and  a  subject  was 
a  defendant,  who  appeared  and  plead,  the  whole  subject  matter  of  the  plead- 
ings was  decided  by  judicial  power,  as  a  judicial  question;  and  such  has  been, 
and  is  the  settled  course  of  equity  in  England.' 

Armed  with  these  precedents,  Mr.  Justice  Baldwin  turns  his  attention  in  the 
following  passage  to  the  colonies  and  States  of  the  American  Union : 

In  the  colonies,  there  was  no  judicial  tribunal  which  could  settle  bound- 
aries between  them ;  for  the  court  of  one  could  not  adjudicate  on  the  rights  of 
another,  unless  as  a  plaintiff.  The  only  power  to  do  it  remained  in  the  king, 
where  there  was  no  agreement ;  and  in  chancery,  where  there  was  one,  and  the 
parties  appeared ;  so  that  the  question  was  partly  political  and  partly  judicial, 
and  so  remained  till  the  declaration  of  independence  Then  the  states,  being  in- 
dependent, reserved  to  themselves  the  power  of  settling  their  own  boundaries, 
which  was  necessarily  a  purely  political  matter,  and  so  continued  until  1781. 
Then  the  states  delegated  the  whole  power  over  controverted  boundaries  to 
congress,  to  appoint  and  its  court  to  decide,  as  judges,  and  give  a  final 
sentence  and  judgment  upon  it,  as  a  judicial  question,  settled  by  specially 
appointed  judicial  power,  as  the  substitute  of  the  king  in  council,  and  the 
court  of  chancery  in  a  proper  case;  before  the  one  as  a  political,  and  the 
other  as  a  judicial  question. 

Then  came  the  constitution,  which  divided  the  power  between  the  political 
and  judicial  departments,  after  incapacitating  the  states  from  settling  their 
controversies  upon  any  subject,  by  treaty,  compact,  or  agreement ;  and  com- 
pletely reversed  the  long  established  course  of  the  laws  of  England.  Com- 
pacts and  agreements  were  referred  to  the  political,  controversies  to  the 
judicial  power.  This  presents  this  part  of  the  case  in  a  very  simple  and 
plain  aspect.  All  the  states  have  transferred  the  decision  of  their  controver- 
sies to  tliis  Court ;  each  had  a  right  to  demand  of  it  the  exercise  of  the  power 
which  they  had  made  judicial  by  the  confederation  of  1781  and  1788;  that 
we  should  do  that  which  neither  states  or  congress  could  do,  settle  the 
controversies  between  tliem.  We  should  forget  our  high  duty,  to  declare  to 
litigant  states  that  we  have  jurisdiction  over  judicial,  but  not  the  power  to 
hear  and  determine  political  controversies ;  that  boundary  was  of  a  political 
nature,  and  not  a  civil  one ;  and  dismiss  the  plaintiff's  bill  from  our  records, 
without  even  giving  it  judicial  consideration.    We  should  equally  forget  the 

■  12  Peters.  742-3. 


EXTENT  AND   EXERCISE  OF  JUDICIAL   POWER 


423 


dictate  of  reason,  the  known  rule  drav.n  by  fact  and  law ;  that  from  the  na- 
ture of  a  controversy  b(.t\vcen  kings  or  states,  it  cannot  be  judicial;  that 
where  they  reserve  to  ''.icniselves  the  final  decision,  it  is  of  necessity  by  their 
inherent  political  power ;  not  that  which  has  been  delegated  to  the  judges,  as 
matters  of  judicature,  according  to  the  law.' 

In  another  portion  of  his  opinion,  the  learned  Justice,  speaking  of  the  States 
of  the  American  Union,  says : 

Those  states,  in  their  highest  sovereign  capacity,  in  the  convention  of  the 
people  thereof;  on  whom,  by  the  revolution,  the  prerogative  of  the  crown, 
and  the  transcendent  power  of  parliament  devolved,  in  a  plenitude  unim- 
paired by  any  act,  and  controllable  by  no  authority,  6  Wheat.  651 ;  8  Wheat. 
584,  88;  adopted  the  constitution,  by  wliich  tticy  respectively  made  to  the 
United  States  a  grant  of  judicial  power  over  controversies  between  two  or 
more  states.  Hy  the  constitution,  it  was  ordained  that  this  judicial  power, 
in  cases  where  a  state  was  a  party,  should  be  exercised  by  this  Court  as 
one  of  original  jurisdiction.  The  states  waived  their  exemption  from  judicial 
power,  6  Wheat.  378,  80,  as  sovereigns  by  original  and  inherent  right,  by 
their  own  grant  of  its  exercise  over  themselves  in  such  cases,  but  which  they 
would  not  grant  to  any  inferior  tribunal  By  this  grant,  this  Court  has 
acquired  jurisdiction  over  the  parties  in  this  cause,  by  their  own  consent  and 
delegated  authority ;  as  their  agent  for  executing  the  judicial  power  of  the 
United  States  in  the  cases  specified.' 


'   i, 
-1'' 


m 


In  a  third  and  a  final  passage,  for  it  is  impossible  to  quote  or  to  sum- 
marize the  whole  opinion,  Mr.  Justice  Baldwin  not  only  states  the  process, 
the  reason  for  the  process,  but  the  procedure  to  be  followed  in  the  actual 
trial  and  disposition  of  controversies  between  States  submitted  to  a  court  of 
justice : 

The  founders  of  our  government  could  not  but  know,  what  has  ever 
been,  and  is  familiar  to  every  statesman  and  jurist,  that  all  controversies 
between  nations,  are.  in  this  sense,  political,  and  not  judicial,  as  none  but 
the  sovereign  can  settle  them.  In  the  declaration  of  independence,  the  states 
assumed  their  equal  station  among  the  powers  of  the  earth,  and  asserted 
that  they  could  of  right  do,  what  other  independent  states  could  do ;  '*  de- 
clare war,  make  peace,  contract  alliances;"  of  consequtnce,  to  settle  their 
controversies  with  a  foreign  power,  or  among  themselves,  which  no  state. 
and  no  power,  could  do  for  them.  They  did  contract  an  alliance  with  F^rance, 
in  1778;  and  with  each  other,  in  1781 ;  the  object  of  both  was  to  defend  and 
secure  their  asserted  rights  as  states ;  but  they  surrendered  to  congress,  and 
its  appointed  Court,  the  right  and  power  of  settling  their  mutual  controver- 
sies ;  thus  making  them  judicial  questions,  whether  they  arose  on  "  boundar>', 
jurisdiction,  or  any  other  cause  whatever  "  There  is  neither  the  authority 
of  law  or  reason  for  the  position,  that  boundary  between  nations  or  states,  is, 
in  its  nature,  any  more  a  political  question,  than  any  other  subject  on  which 


It 


^ 


f        i 


•  12  Peters,  74i-4. 

•  Ibid.,  720. 


424       THE  tJJiTED  states:  a  study  in  international  organization 


'1 


0fjSi'. 


.  'r* 


to  Society 
of  Nations 


they  may  contend.  None  can  be  settled  without  war  or  treaty,  which  is  by 
political  power;  but  under  the  old  and  new  confederacy  they  could  and 
can  Iw  settled  by  a  court  constituted  hy  themselves  as  their  own  substitutes, 
authorized  to  do  that  for  states,  which  states  alone  could  do  beiore  We  are 
thus  pointed  to  the  true  boundary  line  Ijetween  political  and  judicial  power, 
and  (lucstions.  A  sovereign  decides  by  his  own  will,  which  is  the  supreme 
law  within  his  own  boundary ;  6  I'eters,  714;  9  Teters,  748;  a  court,  or  judge, 
decides  according  to  the  law  prescribed  by  the  sovereign  power,  and  that  law 
is  the  rule  for  judgment.  Th  submission  by  the  sovereigns,  or  states,  to  a 
court  of  law  or  equity,  of  a  controversy  between  them,  without  prescribing 
any  rule  of  decision,  gives  power  to  decide  according  to  the  appropriate  law 
of  the  case ;  1 1  Ves.  294 ;  which  depends  on  the  subject  matter,  the  source 
and  nature  of  the  claims  of  the  parties,  and  the  law  which  governs  them. 
From  the  time  of  such  submission,  the  question  ceases  to  be  a  political  one, 
to  be  decided  by  the  sic  volo.  sic  jubeo,  of  political  power;  it  comes  to  the 
court  to  be  decided  bv  its  judgment,  legal  discretion,  and  solemn  considera- 
tion of  the  rules  of  law  appropriate  to  its  nature  as  a  judicial  question,  de- 
pending on  the  exercise  of  judicial  power;  .is  it  is  bound  to  act  by  known 
and  settled  principles  of  national  or  municipal  jurisprudence,  as  the  case 

requires.  ,      ,    •    ,      •     ■  j-    ■ 

It  has  never  been  confnded  that  prize  courts  of  admiralty  jurisdiction, 
or  questions  before  them,  are  not  strictly  judicial;  they  decide  on  questions 
of  war  and  peace,  the  law  of  nations,  treaties,  and  the  municipal  laws  of 
the  capturing  nation,  by  which  alone  they  are  constituted ;  a  fortiori,  if  such 
courts  were  consti'uted  by  a  solemn  treaty  between  the  state  under  whose  au- 
thority the  captu.e  was  made,  and  the  state  whose  citizens  or  subjects  suffer 
by  the  capture.  All  nations  submit  to  the  jurisdiction  of  such  courts  over 
their  subjects,  and  hold  their  final  decrees  conclusive  on  rights  of  property. 
6  Cr.  284-5.  ...       ,._,.., 

These  considerations  lead  to  the  definition  of  political  and  judicial  power 
and  questions;  the  former  is  that  which  a  sovereign  or  state  exerts  by  his  or 
its  own  authority,  as  reprisal  and  contiscation ;  3  Ves.,  429;  the  latter  is  that 
which  is  granted  to  a  court  or  judicial  tribunal.  So  of  controversies  l)etween 
states ;  they  are  in  their  nature  political,  when  the  sovereign  or  state  reserves 
to  itself  the  right  of  deciding  on  it;  makes  it  the  "subject  of  a  treaty,  to  be 
settl<  d  as  between  states  independent."  or  "  the  foundation  of  representa- 
tions from  state  to  state."  This  is  political  equity,  to  be  .idjudged  by  the 
parties  themselves,  as  contradistinguished  from  judicial  equity,  administered 
by  a  court  of  justice,  decreeing  the  equum  et  bonum  of  the  case,  let  who 
or  what  be  the  parties  before  them.* 

Questions  political  in  their  nature  may  thus  become  judicial  by  submis- 
sion to  a  court  of  justice,  to  be  decided  in  accordance  with  principles  of  law 
and  equity,  and  we  are  justified  in  the  belief  that  the  States  composing  the 
society  of  nations  can,  if  they  will,  agree  by  convention  to  submit  their  dis- 
putes to  a  tribunal  of  their  own  creation  for  the  settlement  of  their  contro- 
versies, just  as  the  States  composing  the  American  Union  agreed  by  constitu- 
tion to  submit  their  controversies  to  the  Supreme  Court  of  the  States. 


'  12  Peters,  736-8. 


II 


XX 

CASE  —  CONTROVERSY  —  SUIT 

The  act  of  Congress  more  particularly  mentions  civil  controversies,  a  qualification  of 
the  Kineral  word  in  the  Constitution,  which  1  do  not  doubt  ivtry  reasonable  man  will 
hink  win  «*rranted,  for  it  cannot  be  presumed  that  the  general  wnr.l  ■controversies 
wis  inrended  to  include  any  proceeding,  that  relate  to  criminal  cases,  winch  "^l'  '"^'^'''"^ 
that  respect  the  same  Government,  only,  are  uniformly  considered  of  »'.»"' .'^'"7;,^"? 
to  be  decKled  by  Us  particular  laws  (Mr.  Justice  Iredell  m  thxsholm  v.  O.vry.u.  2  Dallas. 
419,  43'-43-.  decided  in  ITVJ-) 

A  case  in  law  or  equity  consists  of  the  right  of  the  one  party,  as  well  as  of  the  other, 
and  may  truly  be  said  to  arise  under  the  constitution  or  a  law  of  the  y')"^'''  ^«f  "•  ^y.'^" 
ever  its  correct  decision  depends  on  the  construction  of  e.lher.  (Chief  Justice  Marshall  m 
Cohens  v.  Virginia,  6  IVhealon,  164,  379,  decided  «ii  182 1.) 

The  article  does  not  extend  the  judicial  power  to  every  violation  of  the  constitution 
which  may  possibly  take  place,  but  to  "a  case  in  law  or  equity,"  in  which  a  right,  under 
Tuch  laT  IS  asserfed  in  a  Court  of  justice.  If  the  question  can  not  be  brought  in  o  a 
Court,  then  there  is  no  case  m  law  or  equity,  and  no  jurisdiction  is  given  by  the  words  0 
the  article  But  if.  in  any  controversy  depending  m  a  Court  the  cause  should  'lepen'l  "" 
the  validity  of  such  a  law.  that  would  be  a  case  arising  under  the_  constitu  ion,  to  which 
the  judicial  power  of  the  United  States  would  extend.  (Chief  Justice  Marshall  m  Cohens 
V.  I'irginia.  6  Wheaton,  264,  405,  decided  in  iSii.) 

That  power  is  capable  of  acting  only  when  the  subject  is  submitted  to  it  by  a  party 
who  asserts  his  rights  in  the  form  prescribed  by  law.  It  then  liecomes  a  case,  and  he 
constitution  declares,  that  the  judicial  power  shall  extend  to  all  cases  arising  ""'ler  «he 
constitution,  laws,  and  treaties  of  the  United  States.  ( C  hief  Justice  Marshall  iii  Osborn  v. 
Bank  of  the  United  States.  9  Hheaton.  73S.  St9.  decided  i»  /W/.) 

What  then  is  to  be  done  if  these  limitations  of  power  are  transgressed  by  any  State, 
or  "^  •  the  United  States?  The  duly  of  annulling  such  usurpations  is  conhded  by  the  Ihird 
Article  of  the  Constitution  to  the  Supreme  Court,  and  to  such  inferior  Courts  as  Congress 
may  from  time  to  time  ordain  and  establish  Hut  this  remarkable  power  is  capable  only 
of  indirect  exercise;  it  is  called  into  activity  by  "cases,"  by  actual  controversies,  to  which 
individuals,  or  States,  or  the  United  States,  are  parties.  The  point  of  unconstitutionality 
is  raised  by  the  arguments  in  such  controversies,  and  the  decision  of  the  Court  lollows 
the  view  which  it  takes  of  the  Constitution.  A  declaration  of  unconstitutionality,  not 
provoked  by  a  definite  dispute,  is  unknown  to  the  Supreme  Court.  (Sxr  Henry  Sumner 
Maine.  Popular  Government,  1S86,  fp  217-218.) 

In  order  to  entitle  the  party  to  the  remedy  a  case  must  be  presented  appropriate  for 
the  exercise  of  judicial  pov.er .  the  rights  in  danger  must  be  rignts  of  persons  or  property; 
not  merely  political  rights,  which  dc  not  belong  to  the  jurisdiction  of  a  court,  either  in 
law  or  efiuity     State  of  Georgia  v.  Stanton.  6  Wall.  50.  76  u  a  u     1,.. 

When  a  right  is  asserted  bv  a  party  before  a  court  in  the  manner  prescribed  hy  law 
it  then  becomes  a  case  to  which  the  judicial  power  extends  Ibis  includes  the  right  of 
both  parties  to  the  litigation:  and  the  case  may  be  said  to  arise  whenever  its  correct 
decision  IS  dependent  upon  the  construction  of  the  Constitution,  laws,  or  treatK-s  of  he 
United  States.  (Mr.  Justice  .Miller.  Lectures  on  the  Constitution  of  the  United  States, 
1891.  p.  315.  note.) 

The  President  of  the  United  States  of  America  and  Mis  .Majesty  the  King  of  the 
United  Kingdom  of  (Ireat  Britain  and  Ireland  and  of  the  British  Dommions  bevond  the 
Seas,  Emperor  of  India,  desiring  in  pursuance  of  llir  principles  set  forth  in  .Articles  \?-V) 
of   the   Convention    for   the   pacific    settlement   of    international    disputes,    signed   at     the 

4'5 


w 


i- 


'  <1 


n 


426 


THE  UNITED  STATES:  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 


^"^ 


Hague  July  29,  1899,  to  enter  into  negotiations  for  the  conclusion  of  an  Arbitration  Con- 
vention, have  named  as  their  Plenipotentiaries,  to  wit : 

The  President  of  the  United  States  of  America,  Elihu  Root,  Secretary  of  State  of  the 
United  States,  and 

His  Majesty  the  King  of  the  United  Kingdom  of  Great  Britain  and  Ireland  and  of 
the  British  Dominions  beyopd  the  Seas,  Emperor  of  India,  The  Right  Honorable  James 
Bryce,  O.  M  , 

who.  after  having  communicated  to  one  another  their  full  (>owers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  articles: 

Article  I.  Differences  which  may  arise  of  a  legal  nature  or  relating  to  the  inter- 
pretation of  treaties  existing  between  the  two  Contracting  Parties  and  which  it  may  not 
nave  been  possible  to  settle  by  diplomacy,  shall  be  referred  to  the  Permanent  Court  of 
Arbitration  established  at  The  Hague  by  the  Convention  of  the  29t.i  of  July,  1899, 
provided,  nevertheless,  that  they  do  not  alTect  the  vital  mterests,  the  independence,  or 
the  honor  of  the  two  Contracting  States,  and  do  not  concern  the  interests  of  third 
Parties. 

Article  II.  In  each  individual  case  the  High  Contracting  Parties,  before  appealing 
to  the  Permanent  Court  of  .Arbitration,  shall  conclude  a  special  Agreement  dt-rining 
clearly  the  matter  in  dispute,  the  scope  of  the  powers  of  the  Arbitrators,  and  the  periods 
to  be  fixed  for  the  formation  of  the  Arbitral  Tribunal  and  the  several  stages  of  the 
procedure  It  is  understood  that  such  special  agreements  on  the  part  of  the  United 
States  will  be  made  by  the  President  of  the  United  States,  by  and  with  the  advice  and 
consent  of  the  Senate  thereof;  His  Majesty's  Government  reserving  !he  riRht  before 
concludin!?  a  special  agreement  in  any  matter  affecting  the  interests  ot  a  self  governing 
Dominion  of  ihe  British  Empire  to  obtain  the  concurrence  therein  of  the  Government 
of  that  Dominion. 

Such  .Agreements  shall  be  binding  only  when  confirmed  by  the  two  Governments  by 
an  Exchange  of  .Votes. 

Article  III.  The  present  Convention  shall  be  ratified  by  the  President  of  the 
United  States  of  America  by  and  with  the  advice  and  consent  of  the  Senate  thereof, 
and  by  His  Britannic  Majesty.  The  ratifications  shall  be  exchanged  at  Washington  as 
soon  as  possible,  and  the  Convention  shall  take  effect  on  the  date  of  the  exchange  of 
its  ratifications. 

Article  IV.  The  present  Convention  is  concluded  for  a  period  of  five  years,  dating 
from  the  day  of  the  exchange  of  its  ratifications. 

Done  in  duplicate  at  the  City  of  Washington,  this  fourth  day  of  April,  in  the  year 
1906. 

Elihu  Root     [seal] 
James  Bryce   [seal] 

(Arbitration  Cotwention  between  ike  United  Stales  and  Great  Britain,  Signed  at  Wash- 
ington April  4,  1908.    U.  S.  Statutes  at  Large,  Vol.  XXXV,  pp.  1960-1961.) 

The  high  contracting  powers  agree  to  refer  to  the  existing  Permanent  Court  of  Arbi- 
tration at  The  Hague,  or  to  the  Court  of  Arbitral  Justice  proposed  at  the  Second  flague 
Conference  when  established,  or  to  some  other  Arbitral  Tribunal,  all  disputes  between 
them  I  including  those  affecting  honor  and  vital  interests)  which  are  of  a  justiciable  char- 
acter, and  which  the  powers  concerned  have  failed  to  settle  by  diplomatic  methods.  The 
powers  so  referring  to  arbitration  agree  to  accept  and  give  effect  to  the  award  of  the 
Tribunal. 

Disputes  of  a  justiciable  character  are  defined  as  disputes  as  to  the  interpretation  of 
a  treaty,  as  to  any  question  of  international  law.  as  to  the  existence  of  any  fact  which  if 
established  would  constitute  a  breach  of  any  international  obligation,  or  as  to  the  nature 
and  extent  of  the  reparation  to  be  made  for  any  such  breach. 

Any  question  which  may  arise  as  to  whether  a  dispute  is  of  a  justiciable  character  is 
to  be  referred  for  decision  to  the  Court  of  Arbitral  Justice  when  constituted,  or,  until  it 
is  constituted,  to  the  existing  Permanent  Court  of  Arbitration  at  The  Hague.  (.Article 
for  an  International  Convention  Defining  Disputes  of  a  Justiciable  Character,  proposed  bv 
Elihu  Root,  and  printed  in  the  Proceedings  of  Ihe  American  Society  of  International  Law, 
1919,  p.  jO,  note  I.) 


CHAPTER  XX 


CASE CONTROVERSY SUIT 


n 


The  entire  judicial  power  of  the  United  States,  created  by  the  Constitu-  |^S;j"« 
tion.  is  not  only  extended  to  all  cases  in  law  and  equity  arising  under  th  mT.'^' 
Constitution,  the  laws  of  the  United  States,  and  treaties  made  or  which  shall  "'' 
be  made  under  their  authority ;  but  its  exercise  depends  on  the  nature  of  a 
case  in  law  or  equity  of  the  kind  specified,  inasmuch  as  there  is  no  way  of 
obtaining  the  opinion  of  Federal  courts  and  of  their  judges  upon  the  Con- 
stitution, law  or  equity,  unless  a  specific  case  comes  before  them  in  litigation 
by  parties  claiming  a  right  under  the  provisions  of  one  or  other  of  these 
sources.  The  individual  is  protected  against  unlawful  action  on  the  part  of  a 
fellow-citizen,  a  State  of  the  Union,  or  the  Government  of  that  Union ;  the 
rights  of  the  individual  States  are  guarded  against  the  encroachment  of  the 
Government  of  the  United  States,  or  in  controversies  between  themselves,  by 
a  case  in  law  or  equity  begun  in  the  courts.  The  Government  of  the  United 
States  is  protected  against  the  unlawful  conduct  of  the  individual  and  assaults 
of  the  States  by  a  case  in  law  or  equity,  submitted  to  the  courts  for  their  con- 
sideration and  decision.  The  threefold  division  of  power  among  the  depart- 
ments of  that  Government  is  maintained  by  the  simple  expedient  of  a  case  in 
law  or  equity,  differing,  indeed,  in  purpose ;  modified,  it  may  be,  in  form,  but 
identical  in  substance  with  the  case  in  law  or  equity  of  a  private  suitor.  For 
if  jurisdiction  depends  upon  a  case,  a  suit  or  controversy,  it  is  necessary  to 
determine  at  the  very  threshold  the  sense  in  which  the  word  case,  suit  or 
controversy  is  used  in  connection  with  the  judicial  power.  For  if  the  matter 
is  not  a  case,  suit  or  controversy,  falling  within  the  proper  exercise  of  this 
power,  there  is  nothing  whereof  the  court  can  take  jurisdiction,  and  there  is 
nothing  to  be  decided.  If  we  are,  as  so  often  stated,  a  government  of  laws,  not 
of  men,  it  is  the  court  which  interprets  the  laws,  passes  upon  the  conduct 
of  men,  and  .stays  the  hand  of  government  itself  if  only  a  case  arise  under 
the  Constitution,  the  laws  and  treaties  of  the  United  States,  and  come  before 
courts  of  justice  in  the  ordinary  form  of  case,  suit,  or  controversy,  in  law 
or  equity. 

In  the  leading  case  of  Marbury  v.  Madison  (1  Cranch,  137),  decided  in 
180.?,  in  which  John  Marshall,  as  Chief  Justice,  first  disclosed  to  the  bench 
and  bar  his  capacity  as  a  judge,  he  defined  a  case  to  be  a  suit  instituted  accord- 
ing to  the  regular  course  of  judicial  procedure.     In  two  later  cases  he 

4*7 


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Defined 


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If 


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mm 


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"  Suit " 
UetiiMd 


428  THE  UKITEO  STATES:   A  STVDY   IN   INTEINATIONAL  OBGANICATION 

either  had  or  took  occasion  to  go  into  the  details  of  a  case,  to  analyze  and 
to  state  its  essentials  in  terms  which  his  successors  have  been  content  to  repeat 
and  to  follow.  In  Cohens  v.  yirgima  (6  Wheaton,  264,  379),  decided  in 
1821,  the  Chief  Justice  said: 

A  case  in  law  or  equity  consists  of  the  right  of  the  one  party,  as  well 
as  of  the  other,  and  may  truly  be  said  to  arise  under  the  constitution  or  a 
law  of  the  United  States,  whenever  its  correct  decision  depends  on  the  con- 
struction of  either. 

In  a  later  passage  of  his  opinion  (405),  he  adds: 

The  article  does  not  extend  the  judicial  power  to  every  violation  of  the 
constitution  which  may  possibly  take  place,  but  to  "  a  case  in  law  or  equity," 
in  which  a  right,  under  such  law,  is  asserted  in  a  court  of  justice.  If  the 
question  cannot  be  brought  into  a  court,  then  there  is  no  case  in  law  or 
equity,  and  no  jurisdiction  is  given  by  the  words  of  the  article  But  if,  in 
any  controversy  depending  in  a  court,  the  cause  should  depend  on  the 
validity  of  such  a  law,  that  would  be  a  case  arising  under  the  constitution, 
to  which  the  judicial  power  of  the  United  States  would  extend. 

And,  immediately  following  this  passage,  the  Chief  Justice  takes  up  and 
defines  the  term  suit,  used  in  the  11th  Amendment  apparently  synonymous 
with  case,  stating  not  only  the  nature  of  a  suit,  but  how  and  when  it  begins : 

What  is  a  suit?  We  understand  it  to  be  the  prosecution  or  pursuit  of 
some  claim,  demand  or  request;  in  law  language,  it  is  the  prosecution 
of  some  demand  in  a  Court  of  justice.  The  remedy  for  every  species  of 
wrong  is,  says  Judge  Blackstone,  "  the  being  put  in  possession  of  that  right 
whereof  the  party  injured  is  deprived."  "  The  instruments  whereby  this 
remedy  is  obtained,  are  a  diversity  of  suits  and  actions,  which  are  defined 
by  the  Mirror,  to  be  'the  lawful  demand  of  one's  right;'  or,  as  Bracton 
and  Fleta  express  it,  in  the  words  of  Justinian,  '  jus  prosequendi  in  judicio 
quod  alicui  debelur.' "  Blackstone  then  proceeds  to  describe  every  species 
of  remedy  by  suit;  and  they  are  all  cases  where  the  party  suing  claims 
to  obtain  something  to  which  he  has  a  right. 

To  commence  a  suit  is  to  demand  something  by  the  institution  of  process 
in  a  Court  of  justice ;  and  to  prosecute  thf  suit,  is,  according  to  the  common 
acceptation  of  language,  to  continue  thr  demand.  By  a  suit  commenced 
by  an  individual  against  a  State,  we  should  understand  process  sued  out 
by  that  individual  against  the  State,  for  the  purpose  of  establishing  some 
claim  against  it  by  the  judgment  of  a  court;  and  the  prosecution  of  that 
suit  is  its  continuance.  Whatever  may  be  the  stages  of  its  progress,  the 
actor  is  still  the  same.* 

Finally,  in  Osborn  v.  Bank  of  the  United  States  (9  Wheaton,  737,  819), 
decided  in  1824,  the  same  Chief  Justice,  recurring  to  this  question,  thus 
discussed  it  in  its  larger  as  well  as  in  its  technical  bearings : 

'6  Wheaton,  407-& 


CASK  —  CONTKOVERSY  —  SUIT 


429 


It  is  said,  that  the  legislative,  executive  and  judicial  powers  oj  every 
well-constructed  eovernnient.  are  co-extensive  with  each  other;  tnat  is. 
they  are  potentially  co-extensive.  The  executive  department  may  consti- 
tutionally execute  every  law  which  the  legislature  mav  constitutionally 
make,  and  the  judicial  department  may  receive  from  the  legislature  tlic 
power  of  construing  every  such  law.  All  governments  which  are  not 
extremely  defective  in  their  organization,  must  possess,  within  themselves. 
the  means  of  expoun.ling.  as  well  as  enforcing,  their  own  laws  II  we 
examine  the  constitution  of  the  United  States,  we  find,  that  its  framers  kept 
this  great  political  principle  in  view  The  2d  article  vests  the  whole  execu- 
tive Lwer  in  the  president;  and  the  3d  article  declares,  "that  the  judical 
poweVshall  extend  to  all  cases  in  law  and  equity,  arising  under  this  consti- 
tution, the  laws  of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority."  •     •  j-  ..■„„  ♦„ 

This  clause  enables  the  judicial  department  to  receive  JU"S<*'*=*'°"/f 
the  full  extent  of  the  constitution,  laws  and  treaties  of  the  Un't^d  i>  ates. 
when  any  question  respecting  them  shall  assume  such  a  fonn  that  the 
judicial  |X)wer  is  capable  of  acting  on  it.  That  power  is  capable  of  acting 
only  when  the  subject  is  submitted  to  it.  by  a  party  who  asserts  his  rights 
in  the  form  prescribed  by  law.  It  then  becomes  a  case,  and  the  constitut  on 
declares,  that  the  judicial  power  shall  extend  to  all  cases  arising  under  the 
constitution,  laws  and  treaties  of  the  United  States.' 

So  far.  case  or  suit  has  been  considered ;  but  the  Constitution  extends  the 
judicial  power  to  controversies  between  two  or  more  States,  not  to  all  con- 
troversies—inasmuch as  some  of  them  might  be  political  in  character,  and 
therefore  more  fitted  for  treaty  or  compact  than  judicial  decision  — but  to 
controversies  of  a  justiciable  nature,  to  which  the  judicial  power  can  prop- 
erly extend  This  phase  of  the  question  arose  in  the  case  of  Chisholm  v. 
Georgia  (2  Dallas,  419.  432).  decided  in  1793.  in  which  Mr.  Justice  Iredell 
said,  commenting  upon  the  judiciary  act  of  1789,  in  an  opinion  which  has 
commended  itself  to  posterity: 

The  act  of  Congress  more  particularly  mentions  cwt-/  controversies,  a 
qualification  of  the  general  word  in  the  Constitution,  which  I  do  not  doubt 
every  reasonable  man  will  think  well  warranted,  for  it  cannot  l>e  presumed, 
that  the  general  word  "  controversies  "  was  intended  to  include  any  pro- 
ceedings that  relate  to  criminal  cases,  which  in  all  instances  that  respect 
the  same  Government  only,  are  uniformly  considered  of  a  local  nature,  and  to 
be  decided  by  its  particular  laws. 

In  In  re  Pacific  Railway  Commission  (32  Fed.  Rep..  241.  255).  decided  g«'„fe?.K. 
in  1887.  Mr.  Justice  Field,  sitting  at  circuit,  had  .occasion  to  consider  the 
terms  cases  and  controversies,  to  be  found  in  the  second  section  of  the  third 
article  of  the  Constitution,  regarding  which  he  said : 

The  judicial  article  of  the  constitution  mentions  cases  and  controvert 
sies.    The  term  "  controversies,"  if  distinguishable  at  all  from     cases,    is 

•9  Whetton,  818-19. 


I? 


ii  I 


,^J 


430       THE  UNITED  states:  a  study  in  international  organization 

»o  in  that  it  ii  less  comprehensive  than  the  latter,  and  includes  only  suits 
of  a  civil  nature.  Chislwlm  v.  Georgia,  2  Dall.  431,  432;  1  Tuck.  Bl. 
Coinm.  App.  420,  421.  By  cases  and  cunlrovtrsies  are  intended  the  clainis 
of  liti(jants  brought  before  the  courts  for  di termination  by  such  regular 
proceedings  as  are  established  by  law  or  custom  for  the  protection  or 
enforcement  of  rights,  or  tiic  prevention,  redress,  or  punishment  of  wrongs. 
Whenever  the  claim  of  a  party  under  the  constitution,  laws,  or  treaties  of 
the  United  States  takes  such  a  form  that  the  judicial  power  is  capable  of 
acting  upon  it,  then  it  has  U. .  onie  a  case.  The  term  implies  the  existence 
of  present  or  possible  adverse  parties  whose  contentions  are  submitted  t<. 
the  court  for  adjudication. 

In  Osborn  v.  U.  S.,  9  Wheat  819,  the  supreme  court,  speaking  by  Chief 
Justice  Marshall,  after  quoting  the  third  article  of  the  constitution  declaring 
the  extent  of  the  judicial  power  of  the  United  States,  said : 

"  This  clause  enables  the  judicial  department  to  receive  jurisdiction 
to  the  full  extent  of  the  constitution,  laws,  and  treaties  of  the  United 
States,  whin  any  question  respecting  them  sliall  assume  such  a  form 
that  the  judicial  power  is  capable  of  acting  on  it.  That  pon'cr  is 
capable  of  acting  only  Ji7if»«  the  subject  is  submitted  fo  it  by  a  party 
who  asserts  his  rights  in  the  form  prescribed  by  lim:  It  then  becomes 
a  case,  and  the  constitution  declares,  that  the  judicial  power  shall 
extend  to  all  cases  arising  under  the  constitution,  laws,  and  treaties 
of  the  United  States." 

In  his  Commentaries  on  the  Constitution.  Mr.  Justice  Story  says: 

"  It  is  clear  that  the  judicial  department  is  authorized  to  exercise 
jurisdiction  to  the  full  extent  of  the  constitution,  laws,  and  treaties  of 
the  United  States,  whenever  any  question  respecting  them  shall  assume 
such  a  form  that  the  judicial  power  is  capable  of  acting  upon  it.  If 'hen 
it  has  assumed  such  a  form,  it  then  becomes  a  case;  and  then,  and  not 
till  then,  the  judiaal  power  attaches  to  it.  A  case,  then,  in  the  sense 
of  this  clause  of  the  constitution,  arises  when  some  Mibject  touching; 
the  constitution,  laws,  or  treaties  of  the  United  States  is  submitted  to 
the  courts  by  a  party  who  asserts  his  rights  in  the  form  prescribed 
by  law.'" 

And  Mr.  Justice  Story  refers  in  a  note  to  the  speech  of  Marshall  on 

c-ise  of  Robbins,  in  the  house  of  representatives,  before  he  became  chief 

justice,  which  contains  a  clear  statement  of  the  conditions  upon  which  the 

judicial  power  uf  the  United  States  can  be  exercised.     Mis  language  was: 

'*  Ry  extending  the  judicial  power  to  all  cases  in  law  and  equity, 
the  constitution  has  never  been  understood  to  confer  on  that  depart- 
ment any  political  power  whatever.  To  come  within  this  description, 
a  question  must  assume  a  legal  form  for  forensic  litigation  and  judi- 
cial decision.  There  must  l)e  parties  t"  come  into  court,  who  can  be 
reached  by  its  process,  and  bound  by  its  jiowcr ;  whose  rights  admit 
of  ultimate  decision  by  a  tribunal  to  which  they  are  bound  to  submit."  • 

*  32  Federal  Reporter,  256. 


the 


-U 


CASE     -CONTBOVERSY  —  SUIT 


431 


The  distinction  between  contruversics  (it  a  civil  and  criminal  nature,  first 
mentioned  by  Mr.  Justice  Ire<lell  in  the  Chisholm  case,  and  quoted  with 
approval  by  Mr.  Justice  Field,  was  affirmed  by  the  Supreme  Court  in  the 
case  of  l^'isconsin  v.  Pelican  Insurance  Company  (127  U.  S.,  265),  decided 
in  1888  by  Mr.  Justice  Gray,  sjivakinp  for  a  unanimous  court. 

But  cases  and  controversies  are  apparently  considered  as  synonymous, 
diflFering,  if  at  all,  in  that  the  latter  inchule  only  suits  ut  a  civil  nature.  But 
a  case  and  a  controversy  ar  identical  in  nature  and  coextensive  as  far  as 
they  go,  as  was  admirably  pointed  out  by  Putnam  Circuit  Justice,  who  said, 
in  the  case  of  King  v.  McLean  Asylum  (64  Fed.  Rep.,  332,  335-6),  decided 
in  1894: 

The  appellees  rely  on  a  supposed  distinction  between  the  use  of  the 
word  "  cases  "  .-r-1  the  word  "  controversies  "  in  the  section  of  the  consti- 
tution detining  the  federal  judicial  power.  That  section  uses  the  word 
"  cases  "  in  the  first  three  clauses,  namely,  "  cases,  in  law  and  eqviity,"  aris- 
ing under  the  constitution  and  the  laws  and  treaties  of  the  United  States, 
"  cases  aftccting  anil)assadors,  other  public  ministers  and  consuls,"  and 
"cases  of  admiralty  and  maritime  jurisdiction."  So  far  it  has  relation 
mainly,  although  not  entirely,  to  the  subject-matter  <if  the  litigation,  and 
not  to  the  parties  involved.  It  then  changes  to  the  word  "  controversies." 
and  uses  this  with  reference  to  "controversies  to  which  the  United  States 
shall  be  a  party,"  "  to  controversies  between  two  or  more  states."  and  then, 
without  repeating  the  word,  continues  "between  a  state  and  c  izens  of 
another  state;  between  citizens  of  different  states;  between  citizens  of  the 
same  state  claiming  lands  under  grants  of  different  states,  and  between  a 
state,  or  the  citizens  thereof,  and  foreign  states,  citizens  or  subjects."  .  .  . 
The  change  under  consideration,  from  the  word  "  cases  "  to  tl"  word  "con- 
troversies," will  be  found  to  have  been  a  mere  matter  of  style,  and  to  have 
no  relation  to  any  limitation  or  extension  of  the  class  of  questions  to  be 
adjudicated.  As  we  have  already  .«aid,  so  long  as  this  section  of  the  con- 
stitution speaks  especially  with  reierence  to  the  nature  of  the  questions 
involved,  it  uses  the  word  "  cases."  but,  when  it  considers  more  particularly 
proceedings  having  relation  to  the  existence  of  parties,  it  uses  the  word 
"  controversies,"  probably  because,  when  parties  are  spoken  of  as  i.-Tayed 
against  each  other,  literary  style  suggested  the  change. 

The  nature  of  a  case  was  considered,  not  merely  in  its  constitutional  out  l"^'^'^""*' 
in  its  international  aspect,  in  La  Abra  Silver  Mining  Co.  v.  United  States 
(175  U.  S.,  423,  457),  decided  in  1899,  in  which  the  Supreme  Court  was 
obliged  to  consider  an  award  in  behalf  of  a  citizen  of  the  Uti  ted  States, 
rendered  in  his  favor  by  a  mixed  commission  organized  under  wie  treaty  of 
July  4,  1868,  between  the  United  States  and  Mexico,  and  which  the  latter 
country  alleged  to  be  vitiated  by  the  fraud  of  the  .American  claimant,  which, 
to  our  shame  be  it  said,  proved  to  be  only  too  true.  The  Congress,  which 
might  have  determined  the  matter,  referred  it  to  the  Court  of  Cla  ;is.  in 
accordance  with  the  observation  of  Mr.  Justice  Curtis,  speaking  for  the 


M. 


■J 

s 

% 


Ft"  I  ' 


•t^a 


♦32       TUB  VNiTED  itatm:  a  rruoY  m  inteenational  o«caniiation 

court  in  Murray  v.  Hohoken  (18  Howard.  272.  284).  decided  in  1855.  who. 
after  saying  that  the  Congress  can  neither  "  withdraw  from  judicial  cog- 
nizance any  matter  which,  from  its  nature,  is  the  subject  uf  a  suit  at  the 
common  law.  or  in  equity,  or  admiralty;  nor.  on  the  other  hand,  can  it 
bring  under  the  judicial  power  a  matter  which,  from  its  nature,  is  not  a 
subject  for  judicial  determination."  stated,  however,  that  "  there  are  mat- 
ters, involving  public  rights,  which  may  be  presented  in  such  form  that  the 
judicial  power  is  capable  of  acting  on  them,  and  which  are  susceptible  of 
judicial  determination,  but  which  congress  may  or  may  not  bring  within 
the  cognizance  of  the  courts  of  the  United  States,  as  it  may  deem  proper." 

The  objection  taken  by  counsel  for  the  Silver  Mining  Co.  was  "that 
the  Court  of  Claims  has  no  jurisdiction  over  this  matter,  because  it  is  not 
a  '  case '  within  the  meaning  of  the  Constitution,  nor  is  it  a  '  controversy ' 
to  which  the  United  States  is  a  party."  The  question  whether  fraud  entered 
into  and  vitiated  a  transaction  is  clearly  a  judicial  question,  in  the  sense 
that  it  can  be  investigated  and  decided  by  a  court  of  justice,  and  therefore 
a  question  involving  this  is  of  necessity  a  suit  or  a  controversy  in  the  sense 
of  the  Constitution. 

As  previously  stated,  however,  the  government  can  not  consult  the  court 
nor  take  the  opinion  of  the  justices  at  its  discretion.  It  can  only  do  so  in 
a  judicial  proceeding,  and  not  in  a  moot  but  in  a  controverted  case.  It  was. 
therefore,  necessary  to  show  that  the  United  Staffs  had  such  an  interest  in 
the  award  as  to  enable  it  to  appear  as  a  party  ak.    in  its  own  behalf  before 

the  court. 

The  interest  of  the  United  States  was  m.  fest,  in  that  it  had  espoused 
and  presented  the  claim  on  behalf  of  its  citizens  to  the  mixed  commission, 
which  it  should  not  have  done  if  such  claim  lacked  equity  and  was  void  in 
law;  and  in  that  the  moneys  awarded  by  the  mixed  commission  passed  to 
the  United  Sutes  and  were  only  payable  to  the  claimant  to  whom  the  Gov- 
ernment is  satisfied  they  are  properly  due.  In  the  course  of  his  opinion. 
Mr.  Justice  Harlan,  speaking  for  a  unanimous  court,  referred  to  the  defini- 
tion of  case  given  in  the  decisions  already  quoted,  and  discussed  the  case 
of  Gordon  v.  United  States  (2  Wallace.  561;  117  U.  S..  697).  decided  in 
1864.  to  the  eflfect  that  finality  of  decision  is  essential  to  the  exercise  of 
judicial  power.  In  the  following  passage  from  his  opinion,  he  brings  the 
question  within  the  requirements  of  the  Supreme  Court  in  the  matter  of 
case,  suit,  or  controversy : 

The  act  of  1892  is  to  be  taken  as  a  recognition,  so  far  as  the  United 
States  is  concerned,  of  the  legal  right  of  the  Company  to  receive  the 
moneys  in  question  unless  it  appeared  upon  judicial  investigation  that  the 
United  States  was  entitled,  by  reason  of  fraud  practised  m  the  interest  of 


m 


CASE  —  CONTROVERSY  —  SUIT 


433 


that  corporation,  to  withhold  such  moneys  from  it.  Here  then  is  a  matter 
lubjccted  to  judicial  invcstij;ati(in  in  respt-ct  of  which  the  parties  assert 
rights  —  the  United  Statts  insisting  upon  its  rijjht  under  the  principles  of 
international  comity  to  withhold  inonoys  received  hy  it  under  a  treaty  on 
account  of  a  certain  claim  presented  through  it  Iji-fore  the  luinmission 
ori;anized  under  that  trratv  in  the  Ulief.  su|H"rin<Iuced  by  the  claimant,  that 
it  was  an  honest  demand;  the  claimant  insislinj;  ui>on  its  absolute  legal 
right  under  the  treaty  and  the  award  of  the  fommission,  independently  of 
any  question  of  fraud,  to  receive  the  money  and  .lisputing  the  right  of  the 
United  States  upon  any  ground  to  w  •Miold  the  sum  auardul  \Vc  enter- 
tain no  doubt  these  rights  are  su'  ■  ■  of  juiiici.il  determination  within 
the  meaning  of  tlie  adjudged  i  '.n'    .g  to  the  judicial  power  of  the 

courts  of  the  United  States  a     •\\'      nished  '"e  powers  committed 

to  the  Executive  branch  of  th       ,'\,  .  ,  u  .t  ' 


II 


stitution  does  not 

ien  under  law  or 

.«  would,  in  primi- 

.-ourt  is  a  substitute 

are    individuals   or 


IV  n.ind  this  fact,  because 
'.  «>  -ases  involving  a  Con- 
or;' therefore  take  jurisdic- 


But  the  case  or  controver  ■    '     tc   pi.i     '  '      \V    i 
mean  a  moot  or  friendly  cas'  •  in  .    •(•        a.    hn 

equity  and  in  which  the  part  •>  °  1 1  .    <    ■  .t  ,     hus; 

tive  times,  have  settled  the-       ^\<'\:v  u     i' .-  j;  •  .    t!ie 
for  self-redress  of   litigani.     vv'.ci.   ■  <      if'i:''.nts 

States.     It  is  of  the  utmost  in.:ior  xi.  ■    >.,    !r. 
the  judicial  power  of  the  United  Svu.     ^  Kmi: 
test  under  law  or  equity,  of  which  m       ""is 
tion,  and  which  it  decided,  thus  withdiavMiig  from  them  the  power  to  act 
in  an  advisory  capacity. 

In  the  recent  case  of  Muskrat  v.  United  States  (219  U.  S..  346.  354), 
decided  in  1911,  the  Supreme  Court,  per  Mr.  Justice  Day.  thus  refers  to 
the  opinion  of  the  judges  of  the  Supreme  Court  uken  extra-judicially,  on 
the  question  of  their  advisory  power: 

In  1793.  by  direction  of  the  President,  Secretary  of  State  Jefferson 
addressed  to  the  Justices  of  the  Supreme  Court  a  communication  soliciting 
their  views  upon  the  question  whether  their  advice  to  the  executive  would 
be  available  in  the  solution  of  important  questions  of  the  construction  of 
treaties,  laws  of  nations  and  laws  of  the  land,  which  the  Secretary  said 
were  often  presented  under  circumstances  which  "  do  not  give  cognizance 
of  them  to  the  tribunals  of  the  country."  The  answer  to  the  question  was 
postponed  until  the  subsequent  sitting  of  the  Supreme  Court  when  Chief 
Justice  Jay  and  his  associates  answered  to  President  Wash  ton  that  in 
consideration  of  the  lines  of  separation  drawn  by  the  Consti'  on  between 
the  three  departments  of  government,  and  being  judges  of  a  ..ourt  of  last 
resort,  afforded  strong  arguments  against  the  propriety  of  extrajudicially 
deciding  the  questions  alluded  to,  and  expressing  the  view  that  the  power 
given  bv  the  Constitution  to  the  President  of  calling  on  heads  of  depart- 
ments for  opinions  "  seems  to  have  been  purposely,  as  well  as  expressly, 
united  to  the  executitve  departments."  Correspondence  and  Public  Papers 
of  John  Jay,  vol.  3,  p.  486. 


.v 


I 


*La  Abra  Co.  v.  U.  S..  17S  U.  S.,  «0-l. 


,1 


'^^ 


434  THE  UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

This  action  of  the  Justices  seems  to  have  settled  the  point,  because,  from 
that  day  to  this,  the  Supreme  Court  has  not  acted  in  an  advisory  c;.;-acity. 
We  have  also  an  adjudged  case  that  the  judicial  power  of  the  Constitution 
does  not  extend  to  a  moot  or  friendly  case,  for  in  Chicago  '""f  ^^■'"'f  ^''"''« 
Railway  Co.  v.  Welhnan  (143  U.  S..  339.  344).  decided  in  1891.  the  court 
had  occasion  to  consider  this  matter.  The  Supreme  Court  of  Michigan, 
from  which  the  case  was  brought  by  writ  of  error  to  the  Supreme  Court, 
had  said,  per  Mr.  Justice  Morse: 

It  being  evident  from  the  record  that  this  was  a  friendly  suit  between 
the  plaintiff  and  the  defendant  to  test  the  constitutionality  of  this  legisla- 
tion the  attorney  general,  when  it  was  brought  into  this  court  upon  wrU 
of  error  very  properly  interposed  and  secured  counsel  to  represent  the  pub- 
he  interest  In  the  stipulation  of  fa-s  or  in  the  taking  of  testimony  in 
he  court  Jelow  neither  ?he  attorney  general  nor  any  other  Person  interested 
for  or  employed  in  behalf  of  the  people  of  the  :,tate  took  any  V^rt\\h3X 
Serence^here  might  have  been  in  the  record  had  ^^e  people  been  rep- 
resented in  the  court  below,  however,  under  our  view  of  the  case,  is  not 
of  material  inquiry. 

In  the  Supreme  Court  of  the  United  States.  Mr.  Justice  Brewer  refers  to 
this  fact,  and  thus  speaks  on  behalf  of  his  brethren: 

Whenever,  in  pursuance  of  an  honest  and  actual  antagonistic  assertion 
of  rights  S  one  individual  against  another,  there  is  presented  a  question 
fnvolving  the  validity  of  any  act  of  any  legislature.  State  or  Federal  and 
hldec^ion  necessarily  rests  on  the  competency  of  the  legislature  to  so 
InacS  court  must,  in  the  exercise  of  its  solenm  duties  determine  wheU^er 
the  act  be  constitutional  or  not ;  but  such  an  exercise  of  power  is  the  ult - 
mate  and  supreme  function  of  courts.  It  is  legitimate  only  in  the  last 
Srt  and  a^  a  necessity  in  the  determination  of  real,  earnest  and  vita 
com  oversv  between  individuals.  It  never  was  the  thought  that  by  means 
of  a  friendly  suit,  a  party  beaten  in  the  legislature  could  transfer  to  the 
courts  an  inquiry  as  to  the  constitutionality  of  the  legislative  act.' 


•  143  U.  S,  345. 


f' 


JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW 

AND  EQUITY,  TO  ADMIRALTY,  MARITIME 

AND  INTERNATIONAL  LAW 


XXI 


In  appea!inE  to  the  common  law,  as  the  standard  of  exposition,  in  all  doubts  as  to 
the  meaning  of  written  instruments;  there  is  safety,  certainty,  and  authority.  The  institu- 
tions of  the  colonies  were  based  upon  it;  it  was  their  system  of  jurisprudence,  with  only 
local  exceptions,  to  suit  the  condition  of  the  colonists,  w!.o  claimed  it  as  their  birthright 
and  inheritance,  9  Cr.  333,  in  its  largest  sense,  as  including  the  whole  system  of  English 
jurisprudence,    1    Gall.   493;   the   inexhaustible    fountain    from   which    we   draw   our   laws, 

9  S.  &  R.  330,  39,  58.  So  it  continued  after  the  colonies  became  states,  in  most  of  which 
the  common  law  was  adopted  by  acts  of  assembly,  which  gave  it  the  force  of  a  statute, 
from  the  time  of  such  adoption,  and  as  it  was  then;  so  that  in  the  language  of  this 
Court — "  At  the  adoption  of  the  constitution,  there  were  no  states  ir  this  Union,  the  basis 
of  whose  jurisprudence  was  not  essentially,  that  of  the  common  law  in  its__widcst  meaning; 
and  probably  no  states  were  contemplated,  in  which  it  would  not  exist."  3  Pet  446,  8. 
It  is  also  the  basis  on  which  the  federal  system  of  jurisprudence  was  erected  by  the  con- 
stitution, the  judiciary  and  process  acts,  which  refer  to  "  cases  in  laze  and  iii  equity,"  "  suits 
at  common  laze,"  "  the  common  law.  the  princifles  and  usages  of  lav>!'  as  they  had  at  the 
time  been  defined  and  settled  in  England;  5  Cr.  22Z:  3  \Vh.  221;  4  \Vh.  115,  16;  7  \Vh   45; 

10  \Vh.  29,  32,  56,  8:  1  Pet.  613;  and  were  adopted  as  then  understood  by  the  old  states. 
{Mr.  Justice  Baldzcin,  A  General  I'ifU'  of  the  Origin  and  Xalure  of  the  Constitution 
and  Govemmeni  of  the  United  States,  lSs7,  Pp.  3-4) 

But  whatever  may  in  England  be  the  binding  authority  of  the  common  law  decisions 
upon  this  subject,  in  the  United  States  we  are  at  liberty  to  reexamine  the  doctrines,  and 
to  construe  the  jurisdiction  of  the  admiralty  upon  enlarged  and  liberal  principles.  The 
constitution  has  delegated  to  the  judicial  power  of  the  United  States  cognizance  "of  all 
cases  of  admiralty  and  maritime  jurisdiction;"  and  the  act  of  Congress  (24  Sept.  1789. 
ch  20.  s.  9)  has  given  to  the  District  Court  "cognizance  of  all  civil  causes  of  admiralty 
and  maritime  jurisdiction,  including  all  seizures  ntuler  laws  of  impost,  navJKation  or  trade. 
of  the  United  States,  where  the  seizures  arc  made  on  waters  navigable  fri.m  the  sea  by 
vessels  of  ten  or  more  tons  burthen ;  within  their  respective  districts,  as  well  as  upon  the 
high  seas."   .    .    . 

On  the  whole,  I  am,  without  the  slightest  hesitation,  ready  to  pronounce,  that  the  dele- 
gation of  cognizance  of  "all  civil  cases  of  admiralty  and  naritime  jurisdiction"  to  Ih? 
courts  of  the  United  States  comprehends  all  maritime  contracts,  torts,  ami  injuries.  The 
latter  branch  is  necessarily  bounded  by  locality ;  th :  former  extends  over  all  contracts. 
(wheresoever  they  may  be  made  or  executed.  t>r  whatsoever  may  be  the  form  of  the 
stipulations.)  which  relate  to  the  navigation,  business  or  commerce  of  the  sea.  (Mr.  Justicx' 
Story,  in  De  Lovio  v.  Boil,  l  Gallison,  398,  46;--i6S,  (74-475.  deadcf  in  iSi^.) 

Judicial  power,  in  all  cases  of  admiralty  and  maritime  jurisdiction,  is  detcRated  by 
the  Constitution  to  the  Federal  Government  in  general  terms,  an^l  courts  of  this  oliaracter 
had  then  been  established  in  all  commercial  an^  maritime  nations,  differine.  imwcver. 
materially  in  different  countries  in  the  powers  am!  ...ties  confi<led  to  them;  ti.i.  extent  of 
the  jurisdiction  conferred  Upending  very  nnicb  upon  the  character  of  tlie  governnu '  •  in 
which  they  were  created:  and  this  circumstance,  with  the  general  terms  of  the  K^int, 
rendered  it  difficult  to  define  the  exact  limits  of  its  power  in  the  United  States 

This  difficulty  was  increased  by  the  complex  character  of  our  tiovermiion'  where 
separate  and  distinct  specifii-il  piiwcrs  of  sovereignty  are  exercised  hy  the  United  St.it.  s  and  a 
State  independently  of  each  other  within  the  same  territorial  limits.  .\n<I  the  nv  •  is  of 
the  decisions  of  this  court  will  show  that  the  subject  has  often  I'cen  beforo  it.  .11 '!  care- 
fully consid-'ed,  without  being  able  to  fix  with  precision  its  definiK-  boundaries ;   but  cer- 

43S 


436        THE  UNiTEi  states:  a  study  in  international  organization 


ta>iity 


State  law  can  mlarge  it,  nor  can  an  act  of  Congress  or  rule  o(  court  make  it 


#ft^ 


bruaijir  than  the  judicial  iH)wer  may  determine  to  l>e  Ms  Irijc  liinit>  Nml  tli..  U)i;mlary 
IS  to  ie  ascertaiiiid  by  a  nasoiiable  and  just  cor^lnulioii  oi  the  wor<ls  usi-d  in  tln' 
Constitution,  taken  in  connection  with  the  whole  nistrnnunl.  and  the  |.ur].i»es  tor  which 
admiralty  and  maritime  jurisdiction  was  granted  to  the  Federal  Government  (A/r  Chief 
Justice  lam-y,  m  Ihe  SUamcr  itt.  /.ujirt-nc-,  /  Black,  j^.',  S-'O-j^;,  dccidfd  m  iSOi  ) 

Guided  by  these  sound  principles,  this  court  has  felt  itself  at  liberty  to  recognize  the 
admiralty  jurisdiction  a^  extending  to  localities  and  sulijccls  which.  h>  the  jealousy  of  the 
common  law.  were  pruhihited  to  H  in  England,  hut  which  faiily  lulimg  to  it  on  every 
ground  of  reason  whm  applied  to  the  peculiar  circnmsiancts  of  tin-  country,  with  us 
extended  territories,  its  inland  seas,  and  its  navigable  rivers,  especiallly  as  the  narrow 
restrictions  of  the  English  law  had  never  prevailed  on  this  side  of  ihc  Atlantic,  even  in 
colonial  times.     (Mr.  Justice  Bradley  m  The  Lollawanna,  ii  li'alliice.  53IS,  576,  decided  m 

From  all  that  ha  been  said,  these  things  would  seem  to  be  clear:  First,  that  the  maritime 
law.  existing  as  11  does  hs  the  comnimi  consent  of  nations,  and.  being  a  general  law, 
cannot  be  changed  or  modifird  as  to  its  general  operation  by  any  partiiular  sovereignty; 
second,  that  it  has  tTce  in  any  conntry  only  by  its  a.l.piion.  express  or  implied,  by  (hat 
country,  and  niav  be  inoditled  iti  its  specuil  operation  111  that  jurisiliction  at  the  ^li:  it 
that  special  voveriignly  .  Ihnd.  that  it  is  bv  sntli  ailopiion  jiarl  ot  the  federal  law  ■••  -lie 
United  Slates,  and  iMiapable  ot  m'-<*i  Heal  ion  by  state  enactment.- Connress  havr.  ■,  ■;x- 
clusive  jiower,  ninler  the  coiistitnli..;.  "to  regulate  coniiiierce  with  lorciun  nat:ons.  and 
among  the  several  states,  and  with  rhe  Indian  tribes;  and  the  judicial  power  o(  tin- 
United  States  "ixchisue  ot  ilie  state  courts."  extending  "to  all  ascs  of  admiralty  ami 
maritime  jurisdiction."  (Hughes,  Circuit  Judge,  in  The  Manhasset.  iS  Federal  Reporter. 
9ilS,gii,  decided  J>s'f) 

Now  besides  that  law  which  simply  cuncerneth  men  as  men.  and  that  which  helongelh 
unto  them  as  they  are  men  linked  with  others  in  some  form  oi  politic  society,  there  is 
.1  third  kind  of  law  which  tourhcth  all  such  several  'nidies  politic,  so  far  {.■rtli  as  .me 
of  them  hath  jniblu  loiiinuTCc  with  another  And  this  third  is  the  /.<m'  oj  Satums. 
{Ruhard  Hooker,  O)  'he  Laws  .  ,'  Ecclesiastical  I'olity.  inn.  Lliurch  edilion.  'AVi.V,  Hook  I. 
Section  to.  p.  61  \ 

I  remember  in  a  case  before  I-ord  Talbot,  of  Buvot  v.  Harbut.  ( 1736)  .  .  Lord 
TalUit  declared  a  clear  opinion—  I  hat  ih.  law  of  nations,  in  its  full  extent  was  part  of 
Ihe  law  of  ICngland  "— ■  'Ihat  the  Ac!  ,.t  arhameiit  was  .leclaratory  .  and  ociasioned  by 
a  particular  incident  "-■  That  the  law  of  naiions  was  to  be  collected  from  the  jiractice  of 
diturent  nations,  ami  the  ai,:!;  Tily  of  writers. "  AccordinKlv.  he  argncd  and  dtterniined 
from  such  instances,  and  t!ic  .lutliority  nl  drotins.  Barbe>rac.  liinkershoek.  Wiijuefort.  ic. 
theie  beiiiK  no   l'.nj,>ii-ii  writer  .1  emineiioe.  upon  the  subject. 

I  was  cwuisi'l  in  lliis  ca-e;  and  have  a  full  note  of  't  {Lord  Chief  Justice  Mansfield 
III  1  riijuet  ■■  Ifatli.  i  ''iir-  \:  /?,-■''.  I -iKo- 1  !■•<  1 .  decided  in  I'^l.  liivjiish  Reports,  Full  Re- 
prut,  t'ol    .\('r//,  Ao.'./.f      ,       ■;   Pifision,  .\.\l'l.  HiOO,  pp.  9i7-W'^'- > 

The  I.aw  of  Nations,  founded  upon  lustice.  Kqiiity,  Convenience,  and  the  Reason  of  t'l. 
Thing,  and  confirmed  bv  long  Usage.  .  .  {Report  ../  il:e  law  ofjieers  of  the  Crown,  dale  ! 
y.iMumv  '.''',  ;-',',  Ji';ii.(/  <i'i,..  /  c.  (,'  I'aul.  />,  Ryder,  If.  .Murray  [Lord  .\tansfield.  to  tc'i.oii 
tlie  (leftnilion  i.i  ciiiim.oi/y  (i((ri/i«(e<f  |.  1  '•inte<l  in  Sir  Ernest  Satow,  77ic  Silesian  Loan  an  I 
Frederick  llie  Cieat,  I'.if.  p.  .V'  ) 


The  law  of  nations  is  a  ssst<;ni  of  rules,  d 
universal  consent  among  the  civili/i d  iiihabi 
iHsjiiites.  to  regulate  all  cerelnonie^  ani  iivili 
and  good  faith,  in  that  interconrse  which  11 
imlelK-ndent  states,  and  the  individuals  bel^n 
ujion  this  iiriiiciide.  that  difTerent  nations  on 
the  g'""l  thi  >  can;  and.  in  lime  of  war,  as 
thiir  ijwn  rt  al  interests  .\nd.  as  none  of  tin- 
therefore  luiiht  r  c  .n  dictate  or  prc-cribe  the 
must  necessarily  result  fr(ini  those  principles 
of  ever\  ii.itioii  awree ;  or  ibey  dejieiul  iijio 
respective  communities;   in  ibe  construction  1 


iliicihie  by  natural  reason,  rind  established  hv 
taiits  of  the  world ;  in  order  to  decide  all 
1U-.  and  to  insure  the  observance  of  justice 
iii^l  ireipuntly  occur  between  two  or  more 
nw.ti  III  each.  This  general  law  is  foniiilcd 
(jbt  in  time  of  jieace  to  do  one  another  all 
htilf  harm  as  iMissihle,  withmit  prejudice  to 
e  -.lates  will  allow  .1  suiieriority  in  the  other, 
rn'es  r.f  ibis  law  10  the  resl ;  fnit  such  niK  s 
of  natural  justice,  in  which  all  the  learned 
1  niiiiiial  comiiacts  or  treaties  between  ihr 
f  wlucb  there  is  also  no  judge  to   resort   t '. 


JUDICIAL    P»)WERS    AND  THEIR    RELATION    TO  LAW 


437 


but  the  law  of  nature  and  reason    beinp  the  only  one  in  which  all  the  contracting  parties 
are  equally  conversant,  aiul  to  whu-h  tlicy  art  equally  siilM<<l. 

In  arbitrary  states  this  law,  wherever  it  i-oiilrailii  N  or  k  tioi  [■(■vi'lcd  for  by  the  municipal 
law  of  the  countrv,  is  enforced  bv  the  ru.al  ir.vnr  hut  siiuo  in  Kiidland  no  roval  power 
can  uitroduce  a  new  law,  or  suspend  the  execution  of  the  old.  tiKrofore  the  law  of  nations 
(wherever  any  question  arises  which  is  properly  the  object  of  it':,  iiirisdiction)  is  here 
adopted  in  its  full  extent  by  the  common  law,  and  is  held  to  be  ,i  [lart  of  the  law  of  the 
land.  And  those  acts  of  parli.iniciit,  which  ha\e  from  time  to  time  been  made  to  enforce 
this  universal  law,  or  lo  faiiliia'e  the  exceutmn  of  it\  •lecision^.  are  not  to  be  considered 
as  iiitroiluctive  of  any  new  riili.  but  merely  as  deeiaratory  of  tin  old  fundamental  consti- 
tutions of  the  kingdom;  without  uliieh  it  must  ecayc  lo  lie  .i  pan  of  the  civilized  world. 
(.Vir  il'illiam  lUacksloiie,  Comiitciilarivs  on  llu-  Ijiws  nf  Eiiyland.  Unuk  II'.  1769.  ch. 
5,  />/!.  M  67.) 

It  has  also  been  observed,  that  an  act  of  congress  ought  never  10  be  construed  to  violate 
the  law  of  nations,  if  any  other  possible  construction  remains,  and  coiiseqiienlly.  can  never 
be  construed  to  violate  neutral  rights,  or  to  affect  neutral  commerce,  further  than  is  war- 
ranteil  b\  tile  law  of  nations  as  iinderstcmd  in  this  country.  '  !iese  prmcipivs  are  believed 
to  be  correct,  and  they  ought  to  be  kept  in  view,  in  construing  'ne  at  now  Midtr  consid- 
eration. [Chief  Jtishci'  Marshall,  in  The  Charming  Betsy,  J  Craiich  6^,  liS.  decided  m 
iSo.;.) 

Until  such  an  act  be  passed,  the  court  is  bound  by  the  law  ol  lations,  which  is  a  part 
of  the  law  of  the  land,  (i  hiet  Justice  Marshall  in  The  Xereide,  y  l  rand:.  .JW.  /.'.;,  decided 
in  iSiS-) 

The  law  of  nations  is  the  great  source  from  which  we  derive  those  rules,  resiiecting 
belligerent  and  neutral  rights,  which  are  recognized  by  all  civilized  an.l  commercial  states 
throughout  l-'urojie  and  America.  Ibis  law  is  in  part  unwritten,  ami  111  par'  conven- 
tional To  ascertain  that  which  is  unwritten,  we  resort  to  the  great  principles  of  reason 
and  justice:  but  as  these  iinnciples  will  be  ;litTerently  understood  by  iliffereni  nanons, 
under  different  circumstances,  we  consider  them  as  being,  in  some  degree,  fixe'!  and 
rendered  stable  by  a  series  of  udicial  decisions  The  decisions  of  the  courts  m  every 
country,  so  far  as  they  arc  fcuinded  upon  a  law  common  to  every  countrv.  will  he  received, 
not  as  authority,  but  with  respect.  The  decisions  of  the  courts  of  every  country  ^bow 
how  the  law  of  nations,  in  tlie  given  case,  is  understood  in  that  country,  and  will  be 
consiilered  in  adopting  the  rule  winch   is  to  prevail   in  ibis. 

W  ithiuit  taking  a  comparative  view  of  the  justice  or  fairness  of  the  rules  estah'isheH 
in  the  British  courts,  ami  of  those  establislied  in  the  courts  of  other  nations,  ther'-  are 
circumstances  not  to  be  excluded  from  consirleratioii.  which  give  to  thost-  rules  a  claim 
to  our  attention  that  we  cannot  entirely  disregard.  Ibe  I'nited  States  havini;.  at  one 
time,  formed  a  component  part  of  the  liritish  empire,  their  prize  law  was  our  pri.-e  law. 
U  hen  we  separated,  it  continued  to  he  our  pri/e  law.  so  fa.  as  it  was  adapted  to  our 
circumstances,  and  was  11. it  varied  by  the  power  which  was  capable  of  c'langing  it  U  hu-f 
Justice  Marshall,  in  Thirt\  Hogsheads  of  Sugar  v.  liovle,  y  Craiich,  /«/,  igX.  decided  in 
1815) 

International  law  is  part  of  our  law.  and  must  he  ascertained  and  administered  by  the 
courts  of  justice  of  appropriate  jurisdiction,  as  often  as  (juestions  of  right  de|icndinir  iiron 
it  are  .|iil>  prescnte-l  for  tbeir  determination  I'or  this  purpose,  where  there  is  no  in.iiy. 
and  no  coiitroHrig  executive  nr  legislative  act  or  judicial  decision,  resort  must  he  bad  to 
the  customs  and  usages  of  civilized  nations  and.  as  evidence  of  these,  to  the  works  of 
jurists  and  commentators,  who  by  \ears  of  labor,  research  and  expcriimce.  ba.e  made 
themselves  peeuliarK  well  aci|iiainte<i  with  the  subiects  of  which  they  treat.  Such  works 
are  resorted  !o  b'.'  :ui|icial  tribunals,  not  for  the  speculations  of  their  aulhors  concerning 
what  the  law  ought  to  be.  but  for  trustworth>  e\uKnre  of  what  the  law  really  >-  '  Ur 
Justice   Gray,   ir-    The    /'u./iof,-    Habana,    17^    i'nucd    Stales    l\cl'orts.  677.  700.' decided   in 

19"0.) 


If 


CHAPTER  XXI 


^90^ 


Definitton 

..f   '■  Law  *• 
and   "  Eqaity  ' 


Terminolii^ 


JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW  AND  EQUITY,  TO  ADMIRALTY. 
MARITIME  AND  INTERNATIONAL  LAW 

It  will  be  observed  that  the  judicial  power  under  the  Constitution  does 
not  extend  to  all  cases;  but  to  cases  of  law  and  equity.  The  ciuestion  arises 
as  to  the  meaning  to  be  attached  to  law  and  equity  in  this  connection,  as 
they  affect  the  nature  and  extent  of  the  case,  to  which  alone  it  is  to  extend. 
The  importance  of  precision  m  this  matter  and  the  consequences  that  would 
tUnv  from  a  misconception,  have  never  been  better  stated  by  the  great  Chief 
Justice  from  the  bench  than  they  were  by  him  upon  the  floor  of  the  House 
of  Representatives  in  his  speech  on  the  Robbins  case,  delivered  in  1800.  In 
the  course  nt  a  debate,  to  which  the  extradition  of  Jonathan  Kobtjms  gave 
rise,  Representative  Marshall  said: 

A  case  in  law  or  equity  was  a  term  well  understood,  and  of  limited  sig- 
nification It  was  a  controversy  between  parties  which  had  taken  a  shape 
for  judicial  dec:sion.  If  the  Judicial  power  extended  to  every  .luestion 
under  the  Constitution,  it  would  involve  almost  every  subject  proper  tor 
I  eiiislative  discussion  and  decision ;  if,  to  every  question  under  the  laws 
and  treaties  of  the  United  States,  it  would  involve  almost  every  subject 
on  which  the  Executive  could  act.  The  division  of  power  Nvhich  the 
genttenian  had  stated,  could  exist  no  longer,  and  the  other  departments 
would  1)0  swallowed  up  bv  the  Judiciary.  ,  .  .  By  extending  the  Judicial 
power  to  all  cases  in  law  and  equity,  the  Constitution  had  never  been  under- 
stood to  confer  on  that  department  any  political  power  whatever  1  o  come 
within  this  description,  a  question  must  assume  a  legal  form  tor  torensic 
litigation  and  ludicial  decision.  There  must  be  parties  to  conu'  into  court, 
who  can  he  reached  hv  its  process,  and  boun-l  by  its  power;  whose  rights 
admit  of  ultimate  decision  by  a  tribunal  to  which  they  are  bound  t..  submit. 

It  is  comm.Mi  knowledge  that  technical  terms  employed  in  the  Constitu- 
tion are  to  he  taken  in  the  sense  in  which  they  were  understood  in  English 
jurisprudence:  because  the  law  of  England,  no  less  assuredly  than  the  lan- 
guage oi  England,  in  which  the  laws  were  expressed,  accompanied  the 
colonist  as  a  matter  of  course.  We  have  gmid  authority  for  the  assertion 
that  the  law  of  England  was  a  favorite  study  of  his  successors,  and  that 
they  were  familiar  with  us  principles.     In  Edmund  Burke's  speech  on  con- 


'  Annals  of  Congress,  Vol.  10,  p.  606 


Session  of  March  7,  1800. 

4J» 


j&.^>;' 


K:^>^-S? 


:i-%^ 


JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW 


439 


ciliation  with  America,  delivered  in  the  House  of  Commons  on  March  22, 
1775,  that  great  statesman  and  friend  of  the  colonies  said: 

In  no  country  perhaps  in  the  world  is  the  law  so  general  a  study.  The 
profession  itstlf  is  numerous  and  powerful;  and  in  most  provinces  it  takes 
the  lead.  The  greater  number  of  the  deimtics  sent  to  the  congress  were 
lawyers.  But  all  who  read,  and  most  do  read,  endeavor  to  oinain  some 
smattering  in  that  >cience.  I  iiave  been  told  by  an  eminent  bookseller,  that 
in  no  branch  ot  Ins  busmess.  alter  tracts  of  popular  devotion,  were  so  many 
books  as  tlio^e  on  the  law  exported  to  the  plantations.  The  colonists  have 
now  fallen  mtn  tin-  way  of  printing  them  for  their  own  use.  I  hear  that 
they  have  -oici  nearly  as  many  of  Blackstone's  Commentaries  in  America 
as  in  England  ■ 

It  IS  therefore  to  be  expected  that,  when  terms  of  municipal  law  are 
found  in  the  Constitution,  they  are  to  be  understood  in  the  sense  in  which 
they  were  used  in  Blackstone's  Commentaries;  and,  when  the  law  of  nations 
is  referred  to,  that  its  principle?  are  to  be  understood  in  the  sense  in  which 
X'attel  defined  them. 

On  .Xugtist  22,  1787.  the  question  of  an  ex  post  facto  law  was  before  the 
Federal  Convention,  and  there  appearing  t<i  l)e  some  confusion  as  to  its  exact 
meannij;.  Mr.  Madison  rep<ms  in  hi-  notes  that  a  week  later  "  M'.  Dick- 
enson mentioned  to  the  House  that  on  examining  Blackstone's  Com- 
mentaries, he  found  that  the  terms  '  ex  post  facto '  related  to  criminal  cases 
only."  '  And  in  Blackstone's  ^ense  the  phrase  is  to  be  construed,  as  appears 
from  the  leading  r.ise  of  Colder  v.  IhdI.  .  .i  i  )allas,  .^iiC-^).  decided  in  1798. 

We  have  it  on  equally  good  authority  that  the  colonists  were  not  only 
interested  in  and  tannliar  with  municipal  law.  which  they  would  prefer  to 
call  the  common  law  of  England.  Init  tliat  they  regarded  as  indispensable, 
a  knowledge  of  intern.itionai  law.  which  they  would  have  called  the  law  of 
nations,  and  which  cuuld  with  propriety  b'j  termed  the  common  law  of 
nations.  In  i  letter  dated  Phila<lelphia.  December  19,  1775,  written  to 
Charles  \V.  F.  Dtimas.  at  The  Hague,  the  venerable  Dr.  Franklin  said: 

1  am  much  obliu'cd  by  the  kind  present  you  have  made  us  of  your  edi- 
tion of  \atlel  '  It  came' to  us  in  yood  Ma-oii.  when  t!i.-  circumstances  ol  a 
rising  State  make  it  neces.sary  frequently  to  consult  the  Law     'f   Nations. 

'Th.    Jl'nrks  of  lidmund  Burke    Boston.  18.W.  Vo!    U.  p    36 

'  Oocunicoiiirx  !l,st.<rv  .>i  th,-  C,'»\slMulf'n.  Vol  111.  l'.  '.'<«.  Sf?'=i<m  of  Viiciist  ^O,  1/S7 
•Tlir  orit'n.al  cilitioti  of  V.ittel's  "  La-v  of  Nation'-.."  in  two  quart..  voli;im--.  was  pniiu-<I 
at  Neuiliati'l  in  17.W.  and  imrt  of  the  c.lili.>n  boar-  tin'  imi.rmt  of  L.vdeM  an. I  of  Lon'.on^ 
An  editi.m  in  three  volumes.  12  mo,  appeared  m  the  same  yc:\r.  The  file  winch  \  .ittel 
gave  to  his  work  was  /,.•  drr.it  dcs  ^■<-".t.  ou  fiinfi'S  dc  !a  loi  >uiiuri-iU:  att'"1'<iy''  ■'  'J 
conduit,-  el  aux  affnire.t  di-s  miliniis  ft  des  souvruiiiu.  The  edition  for  uliieh  Mr  ijiimas 
was  respon.sihlc  appeared  in  .Xmsterd.nni  in  177.S.  reproducing  the  .uiRii!  ,!  titli-  with  the 
addition  of  'he  followinc  plirases:  Xuufcllc  i-dilioii  auyiiu-iiU-c,  n:  hc  cI  ,-,»rujt-,-  li-.T 
quelqufs  remarques  de  I'cditeur, 


Blackitone 

and 

Vtttd 


International 
Law  the 
Common 
Law  of 
Nationa 


l^Srl 


^r 


Law  and 
Equity 


440  THE  UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

Accordingly,  that  copy  which  I  kept  (after  depositing  one  in  our  own  pub- 
lic library  here,  and  sending  the  other  to  ilie  Lollfgc  of  Massachusetts 
Bay,  as  you  directed)  has  been  continually  in  the  hands  of  the  members 
of  our  Congress  now  sitting,  who  are  much  pleased  with  your  notes  and 
preface,  and  have  entertained  a  high  and  just  esteem  for  their  author.* 

As  to  the  common  law  of  nations,  we  thus  have  Dr.  Franklin's  authority 
for  the  statement  that  the  members  of  the  Continental  Congress  referred  to 
and  accepted  Vattel's  famous  treatise,  as  the  measure  and  standard  of  the 
duties  of  the  colonies,  soon  to  become  free  and  independent  States.'  We  could, 
however,  dispense  with  his  authority,  inasmuch  as  the  common  law  of  nations 
was  then  regarded  as  an  intricate  part  of  the  common  law  of  England,  and 
adopted  as  a  system  by  the  adoption  of  the  common  law.  For  does  not 
Blackstone  inform  us.  in  his  Commentaries,  that  "  the  law  of  nations  (when- 
ever any  question  arises  which  is  properly  the  object  of  its  jurisdiction)  is 
hereby  adopted  in  its  full  extent  by  the  common  law,  and  is  held  to  be  a 
part  of  the  law  of  the  land."  * 

Let  is  now  consider  the  phrase  "law  and  equity."  and  determine  the 
sense  i  which  those  terms  were  understood  by  the  framers  of  the  Constitu- 
tion, therefore  are  to  be  understood  in  the  Constitution  itself. 

I  first  place,  it  will  be  well  to  cite  an  authority  to  the  effect  that 

^  --  rt  are  to  be  accepted  in  the  sense  in  which  they  were  used  in  that 

s     r  law  in  which  the  framers  of  the  Constitution  were  educated,  and 

f  .m  isch  they  borrowed.  Of  the  many  cases  which  might  be  cited  for 
t  i  pur  Kise,  that  of  Robinson  v.  Campbell,  (3  Wheaton,  212,  221-3),  decided 
.11  181  f"  ill  su'^ce.  In  speaking  for  a  unanimous  court,  of  which  Messrs. 
Mars        and  S?  'y  were  members,  Mr.  Justice  Todd  said : 

I     t»"    ..  -  of  the  United  States,  the  circuit  courts  have  cognizance  of  all 
suit'  .  cr   1  nature,  at  common  law  and  in  equity,  in  cases  which  fall 

w'tti,  he  limits  prescribed  by  those  laws.  By  the  34th  section  of  the 
judiciar  act  of  1/89,  it  is  provided,  that  the  laws  of  the  several  states, 
except  V,  lere  the  constitution,  treaties  or  statutes  of  the  United  States 
shall  otherwise  require  or  provide,  shall  be  regarded  as  rules  of  decision, 

»  Francis  Wharton,  Diftomatic  Corrrspondence  of  the  Am-eriean  Revolution,  1889.  Vol. 

•  It  is  interestinR  to  note  th.it  in  the  debates  of  the  Federal  Convention,  Luther  Martin, 
delegate  from  Maryland,  invuked  Vaticl's  authoni)  "  in  order  to  prove  that  individuals 
in  a  State  ■  i  I'litnre  nre  cliiallv  tree  &  iiuleijendrnt,"  and  ht  vouched  the  same  great 
authority  '  ti!  prove  that  the  case  is  the  same  with  Stales  til!  they  surrender  their  s.'v 
ereignty'"  (Madison's  Notes.  Documentary  Htslory.  Vol.  iii,  p.  225.  Session  of 
June  27th.)  . 

•  The  question  nt  distinction  between  suits  of  a  civi!  nature  and  suits  coming  properly 
under  the  aw  (■.  nations  was  raised  in  In  Hf  Baiz  (1,15  V  S.  4().!i.  decided  in  1890. 
Alfhoi«h  t(^  petitioner  claimt-i  to  he  a  public  minister  rcpi-cseiitinK  :<  foreign  country.  Mr. 
r-iie-  Jtisti.o  Fuller  rcnchiit'-t'  that  the  Di-itnct  Court  had  jurisdiction,  and  denied  the 
wnt»  F(-r  opinions  i-.  annL.Hous  rase^.  see  J  51.  Scott,  Judinal  ^fltlemenl  of  Contra- 
ve)sus  .''Ciu^'t'H  i;j/i'j    \  ol.  i.  \i.  J88.  .\'otc. 


JUDiaAL  POWERS  AND  THEIR  RELATION  TO  LAW 


441 


in  trials  at  common  law,  in  the  courts  of  the  United  States,  in  cases  where 
they  apply.  The  act  of  May,  1792,  confirms  the  modes  of  proceeding  then 
used  in  suits  at  common  law,  in  the  courts  of  the  United  States,  and 
declares,  that  the  modes  of  proceeding  in  suits  of  equity,  shall  be  "  accord- 
ing to  the  principles,  rules  and  usages  which  belong  to  courts  of  equity,  as 
contradistinguished  from  courts  of  common  law,"  except  so  far  as  may 
have  been  provided  for  by  the  act  to  establish  the  judicial  courts  of  the 
United  States. 

After  a  brief  discussion  of  this  question,  the  learned  Justice  continued 
and  concluded: 

The  court,  therefore,  think,  that  to  effectuate  the  purposes  of  the  legis- 
lature, the  remedies  in  the  courts  of  the  United  States  are  to  be,  at  common 
law  or  in  equity,  not  according  to  the  practice  of  state  courts,  hut  accord- 
ing to  the  principles  of  common  law  and  equity,  as  distinguished  and 
defined  in  that  country  from  which  we  derive  our  knowledge  of  those 
principles. 


Accepting  as  wc  needs  must,  that  by  law,  common  law  is  meant,  and  by 
equity,  the  practice  in  chancery,  we  are  obliged  to  probe  beneath  the  sur- 
face, in  order  to  ascertain  the  meaning  to  be  assigned  to  these  terms.  In 
the  first  place,  we  must  bear  in  mind  that  the  United  States,  meaning  thereby 
the  more  perfect  union  of  the  States,  was  a  creation  of  the  States  meeting 
in  conference  at  Philadelphia,  and  that  the  Union  only  possessed  the  powers 
expressly  or  impliedly  granted  by  the  delegates  of  the  States  and  ratified 
by  the  State  conventions.  It  was.  therefore,  a  union  without  government 
and  without  law,  except  as  government  and  law  were  provided  by  the  Con- 
stitution and  legislature  in  accordance  with  its  terms.  Each  State  had  its 
government  and  had  its  law.  The  law  of  each  State  was  common  law^ 
and  equity,  although  separate  and  distinct  courts  for  the  administration  of 
the  latter  system  did  not  exist  in  all  the  States. 

In  defining  law  in  terms  of  common  law.  the  la\'-  of  crimes  as  well  as  com 
the  law  in  civil  disputes  might  have  lx;en  adopted.  It  was  for  some 
years  supposed  by  such  men  as  Chief  Justice  Jay  and  Chief  Justice  Ells- 
worth, that  the  common  law  adopted  included  the  law  of  crimes  These 
views,  however,  are  ex|)ressly  repudiated  by  the  Supreme  Court  in  Ui.ited 
States  V.  Hudson  (7  Cranch  Z2.  3.3).  decided  in  1812.  in  which  the  court 
was  called  upon  to  determine  "  whether  the  circuit  courts  of  the  United 
States  can  exercise  a  common-law  jurisdiction  in  criminal  c.Tses."  In  deliv- 
ering the  opinion  of  the  court.  Mr.  Justice  Johnson  said  that  puliiic  opinion 
had  long  since  decided  the  question,  although  it  was  now  prosented  to  the 
court  for  the  first  time.  "  The  course  of  reasoning  which  le.ids  u^  this  con- 
clusion," he  continued,  "  is  simple,  obvious,  and  ailmits  of  Init  little  ilhistra- 


LimitfH   to 
Civil  Caxt 


?s-        }. 


##"!   ' 


Common 
Law 

Applicable 
m  Cue* 
Covcrtd  by 
Sp«cial 
UgiilatiTt 
Act 


InteTprcTatt. 
f  Trnn» 


442  THE  UNITED  STATES:  A  8TOTY  IN   INTEENATIONAL  OECANIZATION 

from  the  several  steles  —  whatever  is  not  expressly  given  to  the  former, 
the  latter  expressly  reserve.  The  judicial  power  of  the  United  States  is 
a  constituent  part  of  those  concessions;  that  power  is  to  be  exercised  by 
Courts  organized  for  the  purpose,  and  brought  into  existence  by  an  effort 
of  the  legislative  power  of  the  Union."  The  question  was  not  whether  the 
courts  could  exercise  jurisdiction  in  matters  of  crimes,  but  whether  it  had 
been  conferred,  as  the  court  could  not  act  without  law.  To  the  contention 
that  such  jurisdiction  would  be  implied,  Mr.  Justice  Johnson  thus  replied: 

The  only  ground  on  which  it  has  ever  been  contended  that  this  jurisdiction 
could  be  maintained  is.  that,  upon  the  formation  of  any  political  body,  an 
implied  power  to  preserve  its  own  existence  and  promote  the  end  and  object 
of  its  creation,  necessarily  results  to  it.  But.  without  examining  how  far 
this  consideration  is  applicable  to  the  peculiar  character  of  our  constitu- 
tion, it  may  be  remarked,  that  it  is  a  principle  by  no  means  peculiar  to  the 
common  law.  It  is  coeval,  probably,  with  the  first  formation  of  a  limited 
Government;  belongs  to  a  system  of  universal  law.  and  may  as  well  support 
the  assumption  of  many  other  powers  as  those  more  peculiarly  acknowl- 
edged by  the  common  law  of  England.  

But  if  admitted  as  applicable  to  the  state  of  things  m  this  country,  the 
consequence  would  not  result  from  it  which  is  here  contended  for.  If  it 
mav  communicate  certain  implied  powers  to  the  general  Governnient,  it 
would  not  follow,  that  the  Courts  of  that  Government  are  vested  with  juris- 
diction over  any  particular  act  done  by  an  individual,  in  supposed  violation 
of  the  peace  and  dignity  of  the  sovereign  power.  The  legislative  authority 
of  the  Union  must  first  make  an  act  a  crime,  affix  a  punishment  to  it.  and 
declare  the  Court  that  shall  have  jurisdiction  of  the  offence.' 

Such  was  the  law  as  declared  by  the  Supreme  Court  in  1812;  and  such 
is  the  law  today,  by  virtue  whereof  such  criminal  jurisdiction  as  federal 
courts  exercise  has  been  created  by  Act  of  Congress  making  an  act  a  crime, 
aftixiiig  a  punishment  to  it.  and  specifying  the  court  in  which  the  offense 
shall  be  irifd. 

It  hatl  previously  been  suggested  by  Mr.  Justice  Iredell,  in  Chisholm  v. 
Gcor^lhi.  (2  l\»llas,  419,  432),  decided  in  1792.  that  criminal  cases  were 
not  inclu.led  among  the  controversies  between  States  to  be  passed  upon  by 
the  Sui>reme  Court.  But  it  is  equally  well  settled  that  technical  expressions, 
terms,  and  phrases  to  be  found  in  the  .Acts  of  Congress  dealing  with  crimes 
are  to  be  interpreted  in  the  sense  in  which  they  were  understood  and  used  in 
the  jurisprudence  of  the  mother  country. 

In  the  case  of  Kepncr  v.  United  States,  (195  U.  S.,  100),  decided  in 
1904,  the  Supreme  Court  had  occasion  to  pass  upon  the  clause  "  that  no  per- 
son shall  be  put  twice  in  jeopardy   for  the  same  offence"  contained  in 

'  United  Stales  v.  Hudson  and  Gooduin,  7  Cranch,  33-4. 


JUDICIAL   POWERS   AND  THEIll  RELATION   TO  LAW 


443 


instructions  to  the  Philippine  Commission,  drafted  by  a  great  Secretary  of 
War,  statesman  and  lawyer  alike.'  by  virtue  whereof  the  dependencies  of  the 
United  States  separated  on  the  west  by  an  ocean  from  the  continent,  were 
secured  in  life,  liberty  and  property,  which  the  British  colonies  in  America, 
separated  from  the  mother  country  by  an  enstern  ocean,  were  denied  by 
lawyers  who  were  not  statesmen. 

Mr.  Justice  Day,  after  a  careful  reference  to  the  authoritif  s,  said : 

In  ascertaining  the  meaning  of  the  phrase  taken  from  the  Bill  of  Rights 
(for  such  the  Amendments  to  the  Constitution  are  frequently  called]  it 
must  be  construed  with  reference  to  the  common  law  from  which  it  was 
taken.' 

And  in  another  portion  of  his  judgment,  he  laid  down  a  rule  of  interpreta- 
tion and  of  construction  which  may  be  quoted  in  this  connection,  saying: 

How  can  it  be  successfully  maintained  that  these  expressions  of  funda- 
mental rights,  which  have  been  the  subject  of  frequent  adjudication  in  the 
courts  of  this  country,  and  the  maintenance  of  which  has  been  ever  deemed 
essential  to  our  Govtrnment.  could  be  used  by  Congress  in  any  other  sense 
than  that  which  has  been  placed  upon  them  in  construing  the  instrument 
from  which  they  were  taken? 

It  is  a  well-settled  rule  of  construction  that  language  used  in  a  statute 
which  has  a  settled  and  well-known  meaning,  sanctioned  by  judicial  de- 
cision, is  presumed  to  be  used  in  that  sense  by  the  legislative  body.* 

In  support  of  this  contention,  and  with  more  special  reference  to  what  may 
be  called  the  civil  side  of  the  common  law,  other  cases  of  the  Supreme  Court 
may  be  invoked.  Thus,  in  5"wii7/j  v.  Alabama,  (124  U.  S.,  465.  478-9),  de- 
cided in  1888.  Mr.  Justice  Matthews,  speaking  for  a  unanimous  court,  said: 

There  is  no  common  law  of  the  United  States,  in  the  sense  of  a  national 
customary  law,  distinct  from  the  common  law  of  England  as  adopted  by 
the  several  States  each  for  itself,  applied  as  its  local  law,  and  subject  to 
such  alteration  as  may  be  provided  by  its  own  statutes.  ... 

There  is.  however,  one  clear  exception  to  the  statement  that  there  is  no 
national  common  law.  The  interpretation  of  the  Constitution  of  the  United 
States  is  necessarily  influenced  by  the  fact  that  its  provisions  are  framed 
in  the  language  of  the  English  common  law,  and  are  to  be  read  in  the  light 
of  its  history.  The  code  of  constitutional  and  statutory  construction  which, 
therefore,  is  gradually  formed  by  the  judgments  of  this  court,  in  the  applica- 
tion of  the  Constitution  and  the  laws  and  treaties  made  in  pursuance  thereof, 
has  for  its  basis  so  much  of  the  common  law  as  may  be  implied  in  the 
subject,  and  constitutes  a  common  law  resting  on  national  authority. 

•  See  Secrctarv  Root's  Instructions  to  the  Philippine  Commission.  Report  of  the  Secre- 
tary of  War  for  1900,  pp  72,  el  j.-i/.,  reprinted  in  Elihu  Root,  Military  and  Colonial  Policy 
of  the  United  States,  pp   287,  el  sea 

'Ktpner  v    (',  S..  195  U.  S.,  125. 

•Ibid..  124, 


f  ■ 


*         \ 


IP 


444       THi  UNITED  states:  a  study  in  intehnational  osganization 

In  support  of  these  views.  Mr.  Justice  Matthews  refers  to  Moore  v.  United 
States  (91  U.  S..  270,  273-4).  decided  in  1875,  in  which  Mr.  Justice  Bradley, 
speaking  for  a  unanimous  court,  had  said : 

The  question  is.  My  what  law  is  the  Court  of  Gaitiis  to  be  Roverned  in 
this  respect?  May  it  adopt  its  own  rules  nt  evidence?  or  is  it  to  be  bov- 
erncd  by  some  system  of  law?  In  imr  opinion,  it  must  be  Rovemed  by 
law;  and  we  know  of  no  system  of  law  by  which  it  should  be  governed 
other  than  the  common  law.  That  is  the  system  from  which  our  judicial 
ideas  and  legal  definitions  are  derived.  The  language  of  the  Constitution 
and  of  many  acts  of  Congress  could  not  be  understood  without  reference 
to  the  common  law. 

In  the  later  case  of  United  States  v.  IVonff  Kim  Ark  (160  U.  S.,  649. 
654).  decided  in  18<)8.  Mr.  Justice  Gray,  who  may  properly  be  called  the 
very  learned  Justice,  speaking  tor  the  court,  said: 

The  Constitution  nowhere  defines  the  meaning  of  these  words,  either  by 
way  of  inclusion  or  of  exclusion,  except  in  so  far  as  this  is  done  bv  the 
afh'rmativc  declaration  that  •all  |)ersons  l)orn  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  "  In  this,  as  in  other  respects,  it  must  l)c  interpreted  iii  the  light  of 
the  common  law,  the  principles  and  history  of  which  were  familiarly  known 
to  the  framers  of  the  Constitution  Minor  v  Happersett,  21  Wall.  162; 
Ex  parte  Wilson.  114  U.  S.  417,  422;  Boyd  v  Untied  Stales.  116  U.  S.  616. 
624.  625;  Smith  v.  Alabama.  124,  U.  S.  465.  The  language  of  the  Con- 
stitution, as  has  been  well  said,  could  not  be  understood  without  reference 
to  the  common  law.  1  Kent  Com.  336;  Bradley.  J.,  in  Moore  v.  Untied 
States.  91   U.  S.  270,  274. 

But  common  law  in  its  criminal  and  civil  sense,  and  equity,  existed  in  the 
colonies  forming  the  thirteen  States.  Common  law  and  equity  exist  in  the 
States  formed  since  the  creation  of  the  more  perfect  union.  It  will  there- 
fore lie  well  to  consider  these  matters  very  briefly,  before  further  considering 
the  nature  and  content  of  the  law  in  the  sense  of  the  Constitution. 

In  the  very  interesting  and  instructive  case  of  Ohio  v.  Laffcrty.  (Tap- 
pan's  Ohio  Reports,  81)  decided  in  1817,  Mr.  Justice  Tappan,  speaking  for 
the  court  of  Common  Pleas  of  the  State  of  Ohio,  had  occasion  to  consider 
whether  the  common  law  was  the  rule  of  decision  in  that  State.  In  the 
course  of  his  opinion,  he  thus  referred  to  the  .Act  of  the  Congress  of  the 
United  States,  commonly  called  the  Northwest  Ordinance,  passed  July  13. 
1787.  during  the  very  session  of  the  Federal  Convention  of  that  year  in 
Philadelphia,  which  made  the  Constitution  of  the  more  perfect  union: 

The  ordinance  passed  by  the  congress  of  the  United  Stati  s  on  the  13th 
of  July  1787,  "  for  the  government  of  the  territory  of  the  United  Stotes 


JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW 


445 


North  West  of  the  river  Oliio,"  is  tht  earliest  of  our  written  laws  Po*- 
ses<tinK  the  North  Western  Territory  in  absolute  sovereignty,  the  United 
States,  by  that  instrunieiit.  provide  f  -  the  temporary  government  of  the 
people  who  may  settle  thrre;  ami,  to  use  the  lan^uaKf  of  that  instrument, 
'  for  extending  the  fundamental  principles  of  civil  .ind  religious  liberty, 
which  form  the  basis  whereon  these  republics,  their  laws  an(l  constitutions, 
are  erected;  to  fix  ami  establish  those  principles  as  the  basis  of  all  laws, 
constitutions  and  govcrnnimts,  which  forever  Ian  ifter  shall  In:  formed  in 
the  saifl  territory ;  to  provide  also  for  the  establisliinint  of  states  and  perma- 
nent government  therein;  and  for  their  a<lmissinn  to  a  share  in  the  federal 
councils,  on  an  e<|ual  footing  with  the  original  states,  at  as  early  periods  as 
may  be  consistent  with  the  general  interest,"  it  was  ordained  and  declared, 
"that  the  inhabitants  of  the  said  territory  shall  ahcays  be  entitled  to  the 
benefits  of  the  writ  of  halieas  corpus,  and  of  the  trial  by  jury;  of  a  pro- 
portionate representation  of  the  people  in  the  legislature,  and  of  judicial  fro- 
ceedinifs  according  to  the  course  of  the  common  law"  —  as  one  of  the 
articles  of  compact  between  the  original  states,  and  the  people  and  stales  in 
the  said  territory,  to  remain  forever  unalterable  unless  by  common  consent  • 

In  a  previous  portion  of  his  opinion  the  learned  judge  had  referred  to  the 
common  law  as  obtaining  in  the  colonics,  saying  of  the  colonists  that: 

In  their  charters  from  the  crown,  they  were  careful  to  have  it  recog- 
nized as  the  foundation  on  which  they  were  to  erect  their  laws  and  ^(iv- 
ernments;  not  more  anxious  was  ^neas  to  secure  from  the  burning  ruins 
of  Troy  his  household  Gods,  than  were  these  first  settlers  of  America  to 
secure  to  themselves  and  their  children  the  benefits  of  the  common  law  of 
England.  From  thence,  through  every  stage  of  the  colonial  governments, 
the  common  law  was  in  force,  so  far  as  it  was  found  necessary  or  useful. 
When  the  revolution  commenced,  and  independent  state  governments  were 
formed ;  in  the  midst  of  hostile  collisions  with  the  mother  country,  when 
the  passions  of  men  were  inflamed,  and  a  deep  and  general  abhorrence  of 
the  tyranny  of  the  British  government  was  felt ;  the  sages  and  patriots  who 
commenced  that  revolution,  and  founded  those  state  governments,  recog- 
nized in  the  common  law  a  guardian  of  Iil)erty  and  social  order.  The  com- 
mon law  of  England  has  thus  always  been  the  common  law  of  the  colonies 
and  states  of  North  America;  not  indeed  in  its  full  extent,  supporting  a 
monarchy,  aristocracy,  and  hierarchy,  but  so  far  as  it  was  applicable  to  our 
more  free  and  happy  habits  of  governn>ent ' 

As  throwing  further  light  upon  the  subject  reference  is  made  to  two 
cases,  the  first  taken  from  an  older  State  of  the  Union,  explaining  the  sen.-,e 
in  which  the  common  law  is  to  be  understood,  and  the  second  from  one  of 
the  younger  States,  defining  the  sense  in  which  it  is  to  be  accepted : 

In  Commonwealth  v.  Chapman.  (13  Metcalf.  68),  decided  in  1848.  Mi-. 
Chief  Justice  Shaw  of  the  Supreme  Court  of  Massachusetts  said : 

We  take  it  to  be  a  well  settled  principle,  acknowledged  by  all  civilized 
states  governed  by  law,  that  by  means  of  a  political  revolution,  by  which 

'  Tappan,  83-4. 
'Ibid.    83. 


Ei 


MICtOCOfr   HSOWTKM  TUT  OMIT 

(ANSI  and  ISO  TEST  CHART  No   1) 


A 


/APPLIED  IM/GE    Inc 

'653   Eos'   Uair   Stft«t 

Rocfiesler.   Htm   Yoti         1*609       USA 

(''6)    *82  -  0300  -  Phor>« 

(7'6)   288  -  5989  -  ^d. 


^■ 


446  THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 

the  political  organization  is  change  ',  the  municipal  laws,  regulating  tlicir 
social  relations,  duties  and  rights,  aio  not  necessarily  abrogated.  They  re- 
main in  force,  except  so  far  as  they  are  repealed  or  modified  by  the  new 
sovereign  authority.  Indeed,  the  existence  of  this  body  of  laws,  and  the 
social  and  personal  rights  dependent  upon  them,  from  1776,  when  the 
declaration  of  independence  was  made,  and  our  political  revolution  took 
place,  to  1780,  when  this  constitution  was  adopted,  depend  on  this  principle.' 

So  much  for  the  general  principle ;  next  for  the  colony  of  English  origin : 

When  our  ancestors  [that  very  great  and  learned  Chief  Justice  con- 
tinues] first  settled  this  country,  they  came  here  as  English  subjects;  they 
settled  on  the  land  as  English  territory,  constituting  part  of  the  realm  of 
England,  and  of  course  governed  by  its  laws;  they  accepted  charters  from 
the  English  government,  conferring  both  political  powers  and  civil  privi- 
leges; and  they  never  ceased  to  acknowledge  themselves  English  subjects, 
and  never  ceased  to  claim  the  rights  and  privileges  of  English  subjects,  till 
the  revolution.  It  is  not  therefore,  perhaps,  so  accurate  to  say  that  they 
established  the  laws  of  England  here,  as  to  say,  that  they  were  subject  to  the 
laws  of  England.  When  they  left  one  portion  of  its  territory,  they  were 
alike  subject,  on  their  transit  and  when  they  arrived  at  another  portion  of 
the  English  territory;  and  therefore  always,  till  the  declaration  of  inde- 
pendence, they  were  governed  and  protected  by  the  laws  of  England,  so 
far  as  those  laws  were  applicable  to  their  state  and  condition.  Under  this 
category  must  come  all  municipal  laws  regulating  and  securing  the  rights 
of  real  and  personal  property,  of  person  and  personal  liberty,  of  habitation, 
of  reputation  and  character,  and  of  peace.  1  he  laws  designed  for  the  pro- 
tection of  reputation  and  character,  and  to  prevent  private  quarrels,  affrays 
and  breaches  of  peace,  by  punishing  malicious  libel,  were  as  iiiiportant  and 
as  applicable  to  the  state  and  conditon  of  the  colonists,  as  the  law  punishmg 
violations  of  the  rights  of  propertv.  of  person,  or  of  habitation;  that  is.  as 
laws  for  punishing  larceny,  assault  and  battery,  or  burglary.  Being  part 
of  the  common  law  of  England,  applicable  to  the  state  and  condition  of  the 
colonists,  thev  necessarily  applied  to  all  English  subjects  and  territories,  as 
well  in  America  as  in  Great  Britain,  and  so  continued  applicable  till  the 
declaration  of  independence.* 

In  the  case  of  Callanan  v.  Jiu'  '  (23  Wisconsin.  343).  decided  in  1868, 
Mr.  Justice  Paine  thus  spoke  of  law  and  equity,  particularly  of  the  latter: 

In  order  to  determine  the  meaning  of  the  phrase  "  judicial  power  as  to 
matters  of  law  and  equity,"  it  is  only  necessary  to  recur  to  the  system  of 
jurisprudence  established  in  this  country  and  derived  from  England,  in 
which  the  courts  had  certain  well-defined  powers  in  those  two  classes  of 
action.  In  actions  at  law  they  had  the  power  of  determining  questions  of 
law,  and  were  required  to  submit  questions  of  fact  to  a  jury.  When  the 
constitution,  therefore,  vested  in  certain  courts  judicial  power  in  mat- 
ters at  law,  this  would  be  construed  as  vesting  such  power  as  the  courts, 
under  the  English  and  American  systems  of  jurisprudence,  had  always  exer- 

'  13  Metcalf,  71. 
•  Ibid.,  73-4. 


JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW 


447 


cised  in  that  class  of  actions.  It  would  not  import  that  they  were  to  decide 
questions  of  fact,  because  such  was  not  the  judicial  power  in  such 
actions.  .    .    . 

Under  the  old  equity  system,  the  chancellor  might  at  any  time  refer 
qijcstions  of  fact  to  a  jury,  but  ii  \.'as  merely  to  inform  his  conscience.  He 
might,  if  he  saw  fit,  disregard  their  verdict,  and  take  it  upon  himself  to 
dispose  of  the  questions  of  fact  absolutely,  as  he  could  have  done  in  the 
first  instance.* 


In  considering  judicial  power  in  the  sense  of  the  Federal  Convention  held 
August  27,  1787,  Mi.  Gouverneur  Morris  asked  whether  the  apparent  juris- 
diction "  extended  to  matters  of  fact  as  well  as  law  .  .  .  and  to  cases  of 
Common  law  as  well  as  Civil  law."  '  To  this  enquiry  Mr.  Wilson,  on  behalf 
of  the  Committev  of  Detail,  of  which  he  had  been  an  industrious  and  perhaps 
the  most  valuable  member,  replied  that  "  The  Committee  he  believed  meant 
facts  as  well  as  law  &  Common  as  well  as  Civil  law."  And  he  added,  "  The 
jurisdiction  of  the  federal  Court  of  Appeals  had  .  .  .  been  so  construed." 
The  question  and  the  answer  were  not  unimportant,  as  the  franiers  of  the  Con- 
stitution were  using  terms  which  have  a  definite  signification,  and  the  law 
about  which  Mr.  Gouverneur  Morris  inquired  and  which  Mr.  Wilson  had  in 
mind  was  the  system  of  law  obtaining  in  courts  of  admiralty  and  maritime  mI"','^?  ""* 
jurisdiction  to  which  the  judicial  power  of  the  United  States  expressly  ex-  {ndud'ed°° 
tends  by  the  second  sectii-m  of  the  third  article  of  the  Constitution.  With 
this  system  of  law  the  public  men  of  that  day  were  familiar,  inasmuch  as  the 
civil  law  in  its  technical  signification  meant,  as  distinct  from  the  common  law 
of  Enj^land,  the  principles  of  Roman  b.w  which  had  found  their  way  into  the 
practice  and  procedure  of  courts  of  admiralty. 

In  view  of  thr  experience  had  with  the  Court  of  Federal  Appeals,  else- 
where ct)n?icl(Ted;  in  view  of  the  express  language  of  the  Ccinstitiition  and 
leadinjj  deci.-iions  of  the  federal  court>,  which  have  given  precision  and 
refinement  to  admiralty  procedure  in  the  United  States,  it  does  not  seem 
necessary  to  dwell  upon  this  phase  of  the  subject.' 

It  is  however  advisable  to  advert  to  the  fact  that  the  judicial  power  of 
the  United  States  was  held  in  the  case  of  PcnhaWoxc  v.  Doanc.  (3  Dallas,  5  ^), 
decided  in  1795,  to  extend  to  cases  which  had  already  been  decided  by  the 
Federal  Court  of  Appeals  under  the  Coii federation,  but  wliose  judgments 
had  not  been  executed,  and  to  the  dec'sion  of  The  Betsey.  (3  Dallas.  6). 
decideit  the  year  JR-fore,  in  which  the  Supreme  Court  held  that  the  District 


An  Inter- 

n<itjonal 
Ciairt 
of  Prize 


'23  Wisconsin,  3-19,  350. 

'  />ii,u»u'iiUii y  History  i>/  iht-  Constilulion,  Vol.  iii,  p.  62". 

'  Sco  (in  tliis  suliiect  the  following  tlirce  out  of  the  many  cases  which  might  be  cited: 
De  t.nvio  V.  Knit  (2  Gallisoii.  .W8),  1815.  hy  Mr.  Justice  Story  on  Circuit;  The  Scolia, 
(14  Wallace,  17U),  ilccidtd  by  the  Supreme  Court  in  1871;  Th,-  Lotlaxcaiiiia  (21  Wallace, 
558).  .lecided  in  1874. 


Ui 


m. 


## 


11 


448  THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 

Court  of  the  United  States  was  not  merely  a  court  of  admiralty  jurisdiction, 
but  that  it  was  a  prize  court  without  having  to  be  specifically  created  as  such. 
In  this  latter  court,  as  is  well  known,  the  law  of  nations,  m  so  far  as  it 
deals  with  prize,  is  administered,  which  Sir  William  Blackstone  held  m  his 
"  Commentaries  "  to  be  a  part  of  the  common  law.  saying: 

the  law  of  nations  (whenever  any  question  arises  which  is  Properly  the 
object  of  its  jurisdiction)  is  here  adopted  in  Us  full  extent  by  the  common 
law.  and  is  held  to  be  a  part  of  the  law  of  the  land. 

For  this  statement  the  learned  commentator  had  the  best  of  authority.    Lord 
Chancellor  Talbot  had  said  in  the  case  of  Buz'Ot  v.  Barbut,  (Cases  Tempore 
Talbot   231)    "That  the  law  of  nations  in  its  full  extent  was  part  of  the 
law  of'England."    And  Lord  Mansfield  himself,  who  had  been  of  counsel  in 
the  case  of  Buvot  v.  Barbut.  said  in  the  case  of  Triquet  v.  Bath  (3  Burrow 
1478   1480).  decided  in  1764.  that  "this  privilege  of  foreign  ministers  and 
their'domestic  servants  depends  upon  the  law  of  nations.    The  act  of  parlia- 
ment of  7.  Ann^  c.  12.  is  declaratory  of  it."    Three  years  later  His  Lordship 
further  said  in  the  leading  case  of  Hcathfield  v.  Chdton.  (4  Burrow  2015. 
2016)   that  "  the  privileges  of  public  ministers  and  their  retinue  depend  upon 
the  law  of  nations,  which  is  part  of  the  common  law  of  England,  And  the 
act  of  Pp.rliament  of  7  Ann  c.  12  did  not  intend  to  alter,  nor  can  alter  the 
law  of  nations."    It  was  natural,  therefore,  that  the  statesmen  of  the  Revolu- 
tion should  consider  the  law  of  nations  as  part  of  the  common  law.    They 
had  by  ordinance  of  the  Congress  of  December  4,  1781.  relating  to  maritime 
captures  professed  obedience  to  the  law  of  nations  "  accordmg  to  the  general 
usages  of  Europe."     There  was  a  very  interesting  case  with  which  ihey 
must  have  been  familiar,  inasmuch  as  it  happened  in  Philade  phia,  then  gen- 
erally looked  upon  as  the  capital  of  the  country,  and  as  it  involved  the  French 
minister  plenipotentiar>-  and  the  King  of  France  it  must  have  created  a  st.n 
In  the  case  of  Rcspublica  v.  De  Ungchamps,  (1  Dallas.  Ill),  decided  m 
1784  the  defendant  was  indicted  and  convicted  because,  as  stated  in  the  in- 
dictment, on  the  17th  of  Ma>,  "  in  the  dwelling-house  of  his  Excellency  the 
French  Minister  Plenipotentiary,  in  the  presence  of  Francis  Barbe  Marboxs. 
unlawfully  and  insolently  did  threaten  and  menace  bodily  harm  and  v.olence 
to  the  person  of  the  said  Francis  Barbe  Marbois,  he  being  Consul  General  of 
France  to  the  United  States,  Consul  for  the  state  of  Pennsylvama   Secretary 
of  the  French  Legation.  &c.  resident  in  the  house  aforesaid,  and  under  the  pro- 
tection of  the  law  of  nations  and  this  Commonwealth." 

The  case  was  as  interesting  as  it  was  novel.    Mr.  Chief  Justice  McKean. 

•  Sir  Wi'liam   BIackst,„.o,  Cn,u„u'„lancs   on   the  l.aus   of   E,ujland.  1765  ed..  Vol.   II. 
1..  67. 


If! 


JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW 


449 


before  whom  it  was  tried  in  Philadelphia  stated  that  it  was  "a  case  of 
the  first  impression  in  the  United  States,"  and  that  "  it  must  be  determined 
on  the  principles  of  the  laws  of  nations  which  form  a  part  of  the  municipal 
law  of  Pennsylvania."  ' 

The  gravity  of  the  offense  is  indicated  by  the  following  sentence  which 
the  Chief  Justice,  on  behalf  of  the  court,  pronounced  as  follows: 

That  you  pay  a  fine  of  one  hundred  French  crowns  to  the  commonwealth ; 
that  you  be  imprisoned  until  the  4th  day  of  July  1786.  which  will  make  a 
little  more  than  two  years  imprisonment  in  the  whole;  ti.at  you  then  give 
good  security  to  keep  the  peace,  and  be  of  good  behaviour  to  all  pu'  lie 
ministers,  secretaries  to  embassies,  and  consuls,  as  well  as  to  all  the  litge 
people  of  Pennsylvania,  for  the  space  of  seven  years,  by  entering  into  a 
recognizance,  yourself  in  a  thousand  pounds,  anvi  two  securities  in  nve  hun- 
dred pounds  each:  that  you  pay  the  costs  of  t^^^s  prosecution,  and  remain 
committed  until  this  sentence  be  complied  with> 

It  was  natural  for  Pennsylvania  to  indict  and  to  sentence  De  Longchamps, 
inasmuch  as  the  law  of  nations  was  a  part  of  the  common  law,  and  the  law, 
criminal  as  well  as  civil,  was  in  force  in  Pennsylvania.  There  might  have 
been  some  difficulty  in  regarding  the  law  of  nations  as  a  part  of  the  law  of 
the  United  States;  but  that  difficulty  seems  to  have  been  obviated  by  section 
eight  of  the  first  article  of  the  Constitution,  authorizing  in  express  terms 
the  Congress  "  To  define  and  punish  Piracies  and  Felonies  committed  on 
the  high  Seas,  and  Offenses  against  the  Law  of  Nations."  As  nations  have 
trouble  enough  in  administering  their  domestic  laws,  without  seeking  to 
enforce  within  their  limits  foreign  laws  as  such,  the  law  of  nations,  there- 
fore, became  by  this  provision  of  the  Constitution,  by  implication  if  not  by 
express  statement,  the  law  of  the  land.  This  has  been  universally  held  from 
the  first  to  the  last  decision  of  the  Supreme  Court,  especially  in  the  case  of 
The  Paquete  Habana,  (175  U.  S.  677.  700),  decided  in  1900,  in  which  Mr. 
Justice  Gray,  speaking  for  the  court,  said :  "  International  law  is  a  part  of 
our  law,  and  must  be  ascertained  and  administered  by  the  courts  of  justice 
of  appropriate  jurisdiction,  as  often  as  questions  of  right  depending  upon 
it  are  duly  presented  for  their  determination."  As  the  law  of  the  land  it  is 
the  law  of  each  State  of  the  Union,  as  well  as  of  the  Union,  and  as  such,  it 
is  administered  in  all  courts,  in  all  cases  involving  its  principles. 

The  judicial  power,  therefore,  extends  to  cases  in  law  and  equity,  ad- 
miralty and  maritime  jurisdiction,  and  the  law  of  nations. 

'  1  Dallas.  114. 
•Ibid..  118. 


ti 


.^■■^ 


XXII 
IMMUNITY  OF  STATES  AND  NATIONS  FROM  SUIT 

I.  i.  .n  ,,tabli.hed  orinciple  of  jurisprudence  in  all  civilized  nations  that  the  sovereiRn 

it  may.  if  .t.  tl.mks  P^^'P"- ,*»'",,  "' %P"  ,'''';'',d*",  fhVsTrm.ssion  is  altogether  vol.n.tary 
in  a  suit  by  ind.vuluals,  "r''y^"V'''",^'^^,u^"f '''"'' "TscX  the  terms  and  conditin,,, 

"  ^h^e'^ram'e ''eS.to'^  from  judical  p.oces,  extends  to  the  P-P";:,*^  "^ .'^'.^Vrfthif 'ca"' 
^rtL  t  :^-?nJ^r^t.^^s^  ^^r.^  Sel=^  Si;^^r:;!it^ a.^^nl. 

*'X°^;;^:u.h   -ii-ct  suit.  ca.n.  h.^maintaine.^nst^^  or^agnst 

their  property    yet    whenj^^eL    ted  Sa,e^^^^^^^^  ^  ,„    , 

Lamst  them,  bevotid  the  demand  or  property  m  controversy.     (Mr.  JuiUce  I  tela 
Sinn.  7  ll'alhce,  t^l,  l53->54.  decided  m  iS68.) 

While  ,hc  United   States  as  a  government  may   ^^\^'Z^ ^^T^^.^^^X^'t 

Re  forts.  373.  3^(>.  decided  in  tgoi.) 

Sec.  145.    The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  determine  the  follow- 
ing niatters:  ,.„.„,  for  nensions)   founded  upon  the  Constitution  of  the  United 

pa'rtv   -nid  be  emitjed   to   -f.-^  .a,^--^.:  ^  s  a"lTe'  ^rij/^'tU.r,  That  nUtn^'g 
rr.hfs'  sTctfon  «I?a  n,    constnu     al  g  vin"  to  Ihe  "a,d  court  jnr.sdiction  to  hear  and  deter- 

li^ht'y^seven.  h:d"brn%eje'cted^!rr™:pomd;  J  adversely  by  any  court,  department,  or  com- 
misiiuii  aulliorizcd  to  hear  and  determmc  the  same. 

450 


ncMUNrrv  of  states  and  nations  from  suit 


451 


Second.  Alt  Mt-offs,  counterclaims,  claims  {or  damages,  whether  liquidated  or  unliqui- 
dated, or  other  demands  whatsoever  on  the  part  <>{  the  Government  of  the  United  States 
against  any  claimant  against  the  Government  in  sa.d  court :  Provided,  That  no  suit  against 
the  Government  of  the  United  States,  brouRht  by  any  officer  of  the  United  States  to 
recover  fees  for  services  alleged  to  have  been  performed  for  the  United  States,  shall  be 
allowed  under  this  chapter  imtil  an  account  for  said  fees  shall  have  been  rendered  and 
finally  acted  upon  as  required  hy  law,  unless  the  proper  accounting  officer  of  the  Treisury 
fails  to  aci  .inally  thereon  within  six  months  after  the  account  is  received  in  said  office. 

Third.  The  claim  of  any  paymaster,  quartermaster,  commissary  of  subsistence,  or 
other  disbursing  officer  of  the  United  States,  or  of  his  administrators  or  executors,  for 
relief  from  responsibility  on  account  of  loss  by  capture  or  otherwise,  while  in  the  lina 
of  his  duty,  of  Government  funds,  vouchers,  records,  or  j^apers  in  his  charge,  and  for 
which  such  officer  was  and  is  held  responsible.  (The  Judicial  Code  of  llie  United  State*, 
igii,  36  Statulei  at  Large,  1136.) 


& 


t;! 


CHAPTER  XXII 


►4«' 


Suit! 
\Kainst 
Statel 


IMMITNITY   OF   STATES  AND   NATIONS   FROM    SUIT 

In  the  exercise  of  judicial  pcmer  and  judicial  discretion  a  judgment   it 
may  be  supposed,  has  been  rendered  in  a  case  between  actual  litigants  mvolv- 
ing  a  princ^,le  of  law  «r  equity.     As  there  existed  between  the  part.es  a 
difference  of  opinion -a  contest -it  is  the  duty  of  the  court,  m  the  exer- 
cise of  judicial  power  and  judicial  discretion,  to  decide  that  controversy, 
settling  finally  and  without  appeal  the  rights  of  the  litigants  .n  the  matter 
of  the  dispute,  whether  it  be  by  a  court  of  first  instance,  from  which  no 
appeal  is  taken  or  allowed,  or  whether  it  be  the  court  of  last  resort  upon 
appeal     The  result  in  either  case  is  an  adjudication  or  culmmation  of  juris- 
diction.    In  the  exercise  of  the  judicial  power  a  judgment  of  the  court  u 
not  only  a  final  determination  but  one  which,  when  determined,  can  be  or  is 
to  be  enforced  by  appropriate  process  of  that  court.    For.  according  to  the 
conception  of  judicial  power  in  the  United  States,  a  judgment  of  a  court 
to  be  final,  is  one  which  can  be  executed  under  process  from  the  court.    Thi. 
statement,  however,  is  to  be  understood  in  the  sense  that  the  decision  is  final 
as  to  the  rights  of  the  parties  in  a  judicial  matter  and  is  to  be  executed 
against  individual  litigants;  and  in  this  respect  American  practice  may  be 
said  to  accord  with  the  practice  of  other  nations.  ,    ^    „  ..   .  c.  .  . 

There  is.  however,  a  matter  in  which  the  practice  of  the  United  States 
differs  from  that  of  other  countries,  in  that  a  State  may   under  certain  cir- 
cumstances, be  sued  as  of  right  in  the  Supreme  Court  of  the  United  States 
in  controversies  involving  law  or  equity,  and  the  rights  of  the    itigating 
parties  fixed  by  a  judgment  of  the  court.    As  this  is  an  extension  of  jud.c.a 
power  beyond  precedent  at  the  time  of  the  adoption  of  the  Constitution  of 
the  United  States,  we  are  prepared  to  expect  that,  in  the  exercise  of  this  new 
right   there  may  be  limitations  or  qualifications  of  it  unknown  in  suits  be- 
tween individuals.    For  in  this  instance  we  are  dealing  with  peoples  in  their 
political  capacity.     It  would  not  necessarily  follow  that  the  process  obtain- 
ing in  the  one  would  obtain  in  the  other  case  or  that  the  procedure  applicable 
to  the  individual  would  be  applicable  to  the  aggregation  which  we  call  a  state 
and  which,  although  it  be  a  person,  is  an  artificial  person.    A  careful  examina- 
tion of  the  records  of  the  Constitutional  Convention  of  1787  and  of  the  pro- 
ceedings of  the  conventions  of  the  different  States  ratifying  the  Constitution, 
fails  to  disclose  any  intent  on  the  part  of  the  framers  of  the  Constitution,  or 

45» 


IMMUNITY   OF  STATES   AND    NATIONS   FROM    SUIT 


453 


of  the  States  ratifying  it,  that  a  judgment  against  a  State  was  to  be  executed 
by  the  ff>rce  of  the  United  States.  Yet  it  was  doubtless  the  feeling  of 
the  framers  and  of  those  advising  the  ratification  of  the  Constitution  that, 
in  extending  the  judicial  power  to  controversies  against  States,  they  were 
not  doing  a  useless  thing,  and  that  the  exercise  of  judicial  power  in  con- 
troversies against  States  would  be  olxycd,  whatever  the  sanction. 

Mr.  Chief  Justice  Taney,  to  cite  only  one  illustrious  example,  recog-  Coercion 
nized  the  distinction  between  a  judgment  against  an  individual  and  a  judg- 
ment against  a  State  'n  its  political  capacity.  It  is  to  be  presumed  that  he 
had  this  distinction  in  mind  when  he  dratted  the  opinion  for  the  court  in  the 
case  of  Gordon  v.  United  States,  because  four  years  before,  in  1860,  he  had 
solemnly  declared,  on  behalf  of  the  court,  in  delivering  its  unanimous  opinion 
in  the  case  of  Kentucky  v.  Dcnnison  (24  Howard,  66.  109-10),  that,  "  If  the 
Governor  of  Ohio  refuses  to  discharge "  a  duty  imposed  upon  him  by 
the  Constitution  and  regulated  in  its  exercise  by  an  act  of  Congress,  "  there  is 
no  power  delegated  to  the  General  Government,  through  the  Judicial  Depart- 
ment, or  any  other  department,  to  use  any  coeicive  means  to  compel  him." 

In  view  of  the  importance  of  this  matter,  the  exact  language  of  Chief 
Justice  Taney  in  the  case  of  Gordon  v.  United  States  (117  U.  S.,  697,  701-2) 
is  quoted : 

It  was  to  prevent  an  appeal  to  the  sword  and  a  dissolution  of  the  compact 
that  this  Court,  by  the  organic  law,  was  made  equal  in  origin  and  equal  in 
title  to  the  legislative  and  executive  hranciu-s  of  tlie  government ;  its  powers 
defined,  and  limited,  and  made  strictly  judicial,  and  placed  therefore  beyond 
the  reach  of  the  powers  delegated  to  the  Legislative  and  Executive  De- 
partments. And  It  is  upon  the  principle  of  the  perfect  independence  of  this 
Court,  that  in  cases  where  the  Constitution  gives  it  original  jurisdiction,  the 
action  of  Congress  has  not  been  deemed  necessary  to  regulate  its  exercise, 
or  to  prescribe  the  process  to  be  used  to  bring  the  parties  before  the  court, 
or  to  carry  its  judgment  into  execution.  The  jurisdiction  and  judicial  power 
being  vested  in  the  court,  it  proceeded  to  prescribe  its  process  and  regulate 
its  proceedings  according  to  its  own  judgment,  and  Congress  has  never  at- 
tempted to  control  or  interfere  with  the  action  of  the  court  in  this  respect. 


In  so  far  as  States  are  concerned,  the  Constitution  provides  that  the  '"J'ciai 

'  rower 

judicial  power  of  the  United  St.ites  shall  extend  ( 1)  to  controversies  to  which  '^^l\^^ 
the  United  States  shall  be  a  party;  (2)  to  controversies  between  two  or  more 
States  (3)  between  a  State  and  citizens  of  another  State;  (4)  between  citi- 
zens of  different  States  (5)  between  citizens  of  the  same  State  claiining  lands 
under  grants  of  different  States;  (6)  and  between  a  State,  or  tlie  citizens 
thereof,  and  foreign  States,  citizens  or  subjects.  It  further  provides  that 
"  in  all  cases  ....  in  which  a  State  shall  be  a  party,  the  Supreme  Court 
shall  have  original  jurisdiction." 


.'    i    I 


CohmM 
to  (w 
Sued 


W^'^ 


454  THE  UNITED  STATES:  A  STUDY   IN    INTEENATIONAL  OEGANUATION 

The  consent  to  be  sued  is  a  general  consent  on  behalf  of  the  States  which 
does  not  have  to  be  renewed  on  any  particular  occasion;  and,  given  in  the 
Constitution,  it  can  not  l)e  withdrawn  by  any  of  the  United  States.  The 
consent  to  be  sued  in  a  court  other  than  the  Supreme  Court  is  a  special 
consent  which  may  be  given  by  statute  in  general  or  for  a  particular  purpose ; 
and  in  giving  it  the  State  may  express  the  conditions  upon  which  it  is  given 
and  may  revoke  it  according  to  its  pleasure  at  any  time  after  the  beginning 
of  the  suit  and  before  final  judgment. 

In  this  latter  case,  however,  we  are  not  dealing  with  the  consent  given  by 
the  Constitution  but  with  the  consent  of  a  State,  in  its  original  capacity,  un- 
aflfected  by  the  provisions  of  the  Constitution.  In  order  to  have  a  clear  under- 
standing of  this  subject,  it  may  be  well  to  consider  in  this  place  whether  a 
State  in  international  law.  which  is  generally  called  a  nation,  may  be  sued 
without  its  consent,  and  whether  the  States  which,  by  their  delegates,  drafted, 
and,  by  their  conventions,  ratified  the  Constitution  were  to  Ix;  consi  "ered 
as  nations  in  the  sense  of  international  law,  or  as  possessing,  in  the  matter 
of  suits,  the  same  rights  and  privileges.  Because,  if  the  States  under  the 
Confederation  stood  on  an  equality  with  the  nations  at  large;  and  if  they 
renounced  an  immunity  by  the  Constitution  which  they  possessed  as  States 
before  its  ratification ;  it  follows  that  the  right  of  suit  is  in  derogation  of  their 
sovereignty,  and  that  it  is  therefore  to  he  strictly  construed,  as  in  every  grant 
against  a  sovereign,  and  is  to  be  exercised  according  to  and  within  the  limits 

of  the  grant. 

There  is  no  need  to  quote  authority  for  the  statement  that  any  and  every 
nation  under  international  law  is  exempt  from  suit  without  its  express  con- 
sent, for  consent  is  not  and  can  not  in  such  cases  be  implied.  The  reason  why 
a  nation  should  be  exempt  from  suit  has  been  variously  and  differently  stated, 
but  the  fact  of  immunity  is  not  open  to  argument.  Mr.  Justice  Gray,  whose 
learning  often  appalled  while  it  convinced,  said  in  the  case  of  Briggs  v.  Light- 
Boats  (11  -Mien,  Mass.,  157),  decided  in  186.S,  on  the  question  of  the  im- 
munity of  the  State  from  suit,  that  "  the  broader  reason  is  that  it  would  be 
inconsistent  with  the  very  idea  of  supreme  executive  power  and  would  en- 
danger the  performance  of  the  public  duties  of  the  sovereign,  to  subject  him 
to  repeated  suits  as  a  matter  of  right  at  the  will  of  any  citizen,  and  to  submit 
to  the  judicial  tribunals  the  trial  and  disposition  of  his  public  property,  his 
instruments  and  means  of  carrying  on  his  government,  in  war  and  in  peace, 
and  th,>  moneys  in  his  treasury."  And  in  a  more  recent  case,  Mr.  Justice 
Grays  successor  on  the  Supreme  Court,  Mr.  Justice  HolmeF.  said,  in  deliver- 
ing its  opinion  in  the  case  of  Kwananakoa  v.  Polyblank  (205  U.  S.,  349. 
353),  decided  in  1907: 


IMMUNITY  or  STATKS  AND   NATIONS   mOM   SUIT 


455 


Some  doubts  have  been  expressed  as  to  the  source  of  the  immunity  of  a 
sovereitjn  jMJWcr  from  suit  without  its  own  permission,  but  tlic  answer  has 
been  pubhc  property  since  b<'foro  the  days  of  Holiln-s.  (I^eviathan,  c  2(>.  2.) 
A  sovereign  is  exempt  from  suit,  not  Ijccnusc  of  any  formal  conception  or 
obsolete  theory,  liut  on  the  logical  and  j)ractica!  ground  that  there  can  bo  no 
legal  right  as  against  the  authority  that  niakis  the  law  on  wliich  tiic  right 
depends,  "  Cor  on  f'cut  bicn  rcii-foir  lay  il'iititniv,  iiuii.i  il  r.\7  imf>i>ssil'li-  par 
nature  de  se  donn-r  l.>y"  Hodin,  Kepuhlique.  1,  c  8.  Kil  Ui2<),  p.  \M. 
Sir  John  F.liot.  De  jure  .Maiestatis.  c.  .V  Xiino  siio  staliitu  luialur  neces- 
silatizr.  Ualdus.,  Dc  Leg.  et  Const.,  Dioma  Vox.  (2d  ed.,  14'*).  fol.  51  B. 
Ed.  1539,  fol.  61.) 


It  is  thus  clear  that  by  the  law  of  nations  a  sovereign  Slate  was  exempt 
from  suit;  and  it  was  also  clear  that  the  particular  sovereign  State,  to  wit, 
England,  from  which  country  the  colon-sts  had  derive<l  their  laws  and  insti- 
tutions, was  immune  from  -suit  except  with  its  own  consent.  It  remains  to 
he  considered  if  the  States  whose  independence  was  proclaimed  by  the  im- 
mortal Declaration  believed  themselves  free  from  suit.  In  this  great  docu- 
ment the  united  colonies  are  declared  to  Iw  "  free  and  independent 
States."  After  specifying  certain  powers  which  independent  States  may 
exercise,  it  is  further  asserted  that  tl  ,  have  the  power  "  to  do  all  other 
acts  and  things  which  independent  St  aes  may  of  right  do."  The  Articles 
of  Confederation,  approved  by  the  Congress  in  1777,  but  not  ratified  by  the 
last  of  the  thirteen  States,  and  therefore  not  binding  upon  any  of  them, 
until  March  1.  1781,  declares  in  its  second  artirie  the  States  to  l)e  sovereign. 
free  and  indepeiulent  and  possessed  of  jvery  power,  jurisdiction  and  right 
which  it  did  not  grant  to  the  United  States  m  Congress  assembled.  In 
Article  9,  the  States  forming  the  Confederacy  allmveil  tlKrnselve*  to  be  sued 
by  one  another  for  specified  purposes  and  in  a  prescrifw'  manne 

But  it  is  evident,  from  the  case  of  Simon  Nathan        he  ('  nivcalth 

of  Virginia  (1  Dallas,  77,  Note  A),  tried  in  tlie  Court  <>f  Coh  i  Pleas  of 
Philadelphia  in  the  September  term  of  1781.  that,  apart  from  tli  \rticles  of 
Confederation  and  the  right  of  suit  according  to  the  method  lii  rescrilied 

a  sovereign,  free  and  independent  State  of  the  Confederacy  wa^  m"  ^  fron 

suit.    The  facts  of  the  case  are  thus  stated  by  the  reporter : 


A  foreign  attachment  was  issued  against  the  Commonweali  4!nia, 

at  the  suit  of  Simon  Nathan;  and  a  quantity  of  clothinij.  iiirj,,      -d  irom 
France,  belonging  to  that  state,  was  attached  in  Philadelphi.i          'lo  dile- 

gates  in  Congress  from  Virginia,  conceiving  this  a  violation  "t  lavs 

of  nations,  applied  to  the  Supreme  Executive  Council  of  Pcni;  i.i.  (•■ 

whom  the  sheriff  was  ordered  to  give  up  the  goods.     The  c(<<iir,M>i  the 

plaintiff,  finding  that  the  sheriff  suppressed  the  writ,  and  nia/-    n  ni 

of  his  proceedings,  obtained,  Se{)tember  20,  1781,  a  rule  that  ch*  '^ 
should  return  the  writ,  unless  cause  was  shown, 


r*!^  i  t 


SoTfrttftilr 

nnt    Alwayt 

«ii  Eicnpttua 


^- 


i,« 


456  THE  UNITED  STATES:  A  STUOY   IN   INTEENATIONAL  OEGANUATION 

Upon  the  argument,  the  Attorney  General,  on  the  part  of  the  sherih  ami  by 
direction  of  the  Supreme  Executive  Council,  "  showed  cause."  to  quote  again 
the  reporter.  "  and  prayed  that  the  rule  might  \>c  discharged."  The  \ttorney 
General,  it  will  lie  observed,  took  his  stand  upon  the  law  of  nations.  Thus: 

He  premised,  that  though  the  several  statis  which  form  our  fedvral 
repulilic,  liail.  by  the  confederation,  ceded  many  of  the  prerogatives  of  sov- 
ereignty to  the  United  States,  yet  these  voluntary  engagements  did  not  injure 
their  independence  on  each  other ;  but  that  each  was  a  sovereign.  "  with 
every  power,  jurisdiction  and  right,  not  expressly  given  up  "  He  then  laid 
down  two  positions.  1.  'Ihat  every  kind  of  process  issued  against  a  sov- 
ereign, is  a  violation  of  the  laws  of  nations;  and  i*.  in  itself,  null  and  void. 
2.  That  a  sherill  cannot  be  compelled  to  serve  or  return  a  void  writ.' 

Leaving  out  the  balance  of  the  argument  supporting  these  positions,  it  is  to 
be  obscrvefl  that  counsel  for  the  plaintiff  ailmittcd  the  sovereignty  of  Vir- 
ginia, but  insisted  that  sovereignty  was  not  a  defense  against  an  act  of  in- 
justice.    Thus,  to  quote  the  language  of  the  reporter: 

The  counsel  for  the  plaintiff  insisted,  that  though  Virginia  was  a  sov- 
ereign state,  yet  this  ought  not  to  exempt  her  property  in  every  case  from 
the  laws  and  jurisdiction  of  another  state.  The  sovereignty  should  never 
be  made  a  plea  in  bar  of  justice;  and  that  the  true  idea  of  prerogative,  was 
the  power  of  doing  good,  and,  not,  as  it  had  sometimes  been  expressed, 
"the  divine  right  of  doing  ill."' 

Without  considering  the  balance  of  the  plaintiff's  contention,  which,  as  has 
been  seen,  recognized  the  sovereignly  of  Virginia,  it  is  sufficient  to  quote  the 
judgment  of  this  case  in  the  words  of  the  reporter : 

The  Court  held  the  matter  some  days  under  advi.sement;  and  at  their 
next  meeting,  the  President  delivered  it  as  the  judgment  of  the  court : 

"  That  the  rule  made  upon  the  sheriff,  to  reiurn  the  writ  issued  agamst 
the  commonwealth  of  Virginia,  at  the  suit  of  Simon  Nathan,  should  be 
discharged  "  * 

The  meaning  of  this  is  free  from  doubt.  The  Commonwealth  of  Virginia, 
sovereign  under  the  Articles  of  Confederation,  could  not  be  sued  except  in 
the  manner  prescribed  by  the  .Articles  of  Co'i federation:  that  a  writ  of  at- 
tachment, if  issued,  would  be  dissolved;  and  that  an  order  of  the  court 
directing  the  shcriiif  to  return  the  writ  would  be  discharged  as  inconsistent 
with  the  rights  of  a  sovereign  State. 

It  can  therefore  Ijc  confidently  stated,  and  without  fear  of  successful  con- 
tradiction, that  the  States  represented  by  their  delegates  in  the  Philadelphia 

•  1  D.illas,  78. 
"  Ibid.,  79. 

•  Ibid.  80, 


IMMUNITY   or   STATES   AND   NATIONS   FKOM    SI  11 


457 


Conference  were  sovereign,  and  iH><isc)sed  of  all  stivceign  powers  except  in 
lo  far  as  they  had  lieen  pleased  to  renounce  the  exercise  thereof;  that  one 
of  the  powers  of  sovereiRiity  iiilierent  in  a  State  wa<*  immunity  from  suit, 
except  as  the  States  had  renounced  the  exemption  in  the  Articles  of  Con- 
fe<leration;  and  that  they  were  exempt  from  suit  under  the  new  and  more 
perfect  Union  drafted  by  their  dclcnates  in  conference  and  ratified  by  the 
States,  except  in  so  far  as  they  renounced  the  immunity. 

It  is  frequently  '<aid  that,  under  the  9th  of  the  Articles  of  Confederation, 
a  State  could  I*  sued  by  a  State  only  in  the  matter  of  l)ouiulary ;  but  this  is  so 
glaringly  inconsistent  with  the  express  language  of  the  articles  that  it  is  hard 
to  see  how  anyone  at  all  familiar  with  its  text  could  fall  into  such  an  error. 
And  yet  Mr.  Justice  McLean,  delivering  the  opinion  oi  the  Supreme  Ccjurt 
in  the  case  of  Briscoe  v.  Bank  of  Kentucky  (11  Peters,  257,  321),  said  in 
January,  1837: 


.  No  sovereign  state  is  liable  pl 


Suit  without 
Ciinttnt 

Under  the  articles  of  confederation,  a   Jj",|,"""'"* 
state  could  be  sued  only  in  cases  of  boundary.  s^tri-ignty 


Rut  was  a  state  liable  to  be  sued? 
t(    be  sued  without  her  consent. 


The  fact  is  that,  upon  the  ratification  of  the  Constitution  and  the  institution 
of  the  government  under  it,  the  .Articles  of  Confederation  dropped  out  of 
sight,  and  they  have  not  yet  been  treated  by  historians  and  publicists  as  they 
deserve.    The  material  portion  of  the  9th  Article  reads: 


1^ 


The  United  States  in  Congress  assembled  shall  also  be  the  last  resort 
on  appeal  in  all  d'sputes  and  differences  now  subsisting;  or  that  may  here- 
after arise  between  two  or  more  States  conccrninfj  Ixaundary,  jurisdiction, 
or  any  cause  whatever. 


But  the  nature  and  extent  of  this  power  and  its  exercise  need  not  detain 
us  here.  It  is  merely  mentioned  in  passing  to  show  that  the  States  had 
consented  generally  to  suit  and  had  prescribed  the  method. 

The  immunity  of  a  State  of  the  American  Union  from  suit  was  discussed 
in  Beers  v.  State  of  Arkansas  (20  Howard,  527),  decided  in  1857.  In  this 
interesting  and  leading  case  it  appeared  that  the  constitution  of  the  State  of 
Arkansas  authorized  the  fieneral  Assembly  to  direct  "  in  what  courts  and  in 
what  manner  suits  may  be  commenced  against  the  State ;  "  and,  in  pursuance 
of  this  provision  of  the  constitution,  an  act  was  passed.  Under  the  permis- 
sion of  this  act.  suit  was  brought  against  the  State  which,  after  the  suit  had 
bccjun,  passed  an  act  requiring  the  plaintiff  to  file  in  open  court  the  bonds  on  sover'Tnt' 
which  the  suit  was  brought.  This  the  plaintiff  refused  to  do,  and  the  court 
dismissed  the  suit.  On  writ  of  error  carried  to  the  Supreme  Court  of  the 
United  States,  the  judgment  of  the  court  of  last  resort  of  Arkansas  was 


458 


THE   UNITED 


states:  a  study  in  international  organization 


1¥^  - 


affirmed,  and.  in  the  course  of  the  unanimous  opinion  of  the  court  announc- 
ing judgment.  Mr.  Chief  Justice  Taney  said : 

It  is  an  established  principle  of  jurisprudence  in  all  civilized  nations 
that  the  sovercien  cannot  be  sued  in  its  own  courts,  or  m  any  other,  without 
,s  c  nscm  and  pernussi.m;  but  it  may.  if  it  thinks  proper,  .waive  this 
priv  U-Kc,  and  permit  itself  to  be  made  a  defendant  m  a  suit  by  m.hvuluals, 
or  bv  another  State.  And  as  this  permission  is  altogether  voluntary  on  the 
part  of  the  sovereignty,  it  follows  that  it  may  prescribe  the  terms  and  con- 
ditions on  which  it  consents  to  be  sued,  and  the  m.inner  m  which  the  suit 
shall  be  conducted,  and  may  withdraw  its  consent  whenever  it  may  suppose 
that  justice  to  the  public  requires  it.* 

Considering  the  question  whether  the  law  of  the  General  Assembly  permitting 
suit  was  when  acted  upon  by  the  plaintif?,  in  the  nature  of  a  contract,  which 
could  not  be  repealed  without  injury  to  the  plaintiff's  rights,  the  Chief  Justice 
said,  siwaking  for  the  court : 

Arkansas  by  its  Constitution,  so  far  waived  the  privilege  of  sovereignty 
as  to  autliori'ze  suits  to  be  instituted  against  it  in  its  own  courts,  and  dele- 
gated to  its  General  A-onibly  the  power  directing  .'"  j^^f^^^^^^f V„,^f  '^ 
what  manner,  the  suit  .nght  be  commenced.     And  it  the  law  of  18-4  had 
been  passed  before  the  suit  was  instituted,  we  do  not  understand  that  any 
objec  ion  would  have  been  made  to  it.    The  objection  is.  that  it  was  passed 
after  this  suit  was   instituted,  and  contained   regulations   with   which  the 
plaintitT  could  not  conveniently  comply.     But  the  prior  law  was  not  a  con- 
tract     It  was  an  ordinarv  act  of  legislation,  prescribing  the  conditions  upon 
which  the  State  consented  to  waive  the  privilege  of  sovereignty-^    It  con- 
tained no  stipulation  that  these  regulations  should  not  be  modified  after- 
wards  if  upon  experience,  it  was  found  that  further  provisions  were  neces- 
san-  to  pro'tect  the  public  interest;  and  no  such  contract  can    '«  '"'P'-ed 
from  the  law.  nor  c.-ln  this  court  inquire  whether  the  l=»w  operated  hardly 
or  uniustlv  upon  the  parties  whose  suits  were  then  pending.     That  was 
a  question  fo;  the  consideration  of  the  Legislature.     They  "?'«''*  h^e  re- 
pealed the  prior  law  alt.,gether.  an.l  put  an  end  to  the  J^^^'lic  ion  of  their 
courts  in  suits  against  the  State,  if  they  had  thought  pr.jper  to     <,  so    or 
prescribe  new   con.litions  upon   which   the   smts   might   std     ''^   a  lowed   to 
proceed.     In  exercising  this  latter  power,  the   State  violated   no  contract 
with  the  parties:  it  merely  regulate.l  the  pr..ceedings  in  its  ow-n  C""rt^-  ^"f 
limited  the  juris.liction  it  had  before  conferred  in  suits  when  the  State  con- 
sented to  be  a  party  defendant.^ 

In  like  manner,  the  State  having  a  right  to  appear  in  court  and  sue  natu- 
rally determines  when  it  shall  exercise  that  right.  Otherwise,  the  pos.session 
of  the  right  would  be  an  emptv  privilege.  This  was  briefly  but  adequately 
stated  in  the  case  of  Clark  v.  liinnard  (108  U.  S..  436.  447-8).  decided  by 

•20  How.ird.  529. 
'Ibid..  ^2<>-iO 


2MMUNITY  OF  STATES  AND   NATIONS   FROM   SUIT 


459 


the  Supreme  Court  in  1883,  in  which  Mr.  Justice  Matthews,  speaking  for 
a  unanimous  court,  said : 

The  immunity  from  suit  belonging  to  a  State,  which  is  respected  and 
protected  by  the  Constitution  within  the  hmits  of  the  judicial  power  of  the 
United  States,  is  a  personal  privilege  which  it  may  waive  at  pleasure;  so 
that  in  a  suit,  otherwise  well  brought,  in  which  a  State  had  sufficient  inter- 
est to  entitle  it  to  become  a  party  defendant,  its  appearance  in  a  court  of  the 
United  States  would  be  a  voluntary  submission  to  its  jurisdiction;  while, 
of  course,  those  courts  are  always  open  to  it  as  a  suitor  in  controversies 
between  it  and  citizens  of  other  States.  In  the  present  case  the  State  of 
Rhode  Island  appeared  in  the  cause  and  presented  and  prosecuted  a  claim 
to  the  fund  in  controversy,  and  thereby  made  itself  a  party  to  the  litigation 
to  the  full  extent  required  for  its  complete  determination.  It  became  an  actor 
as  well  as  defendant.  .  .  . 

If,  however,  the  State  appears,  it  waives  its  immunity  to  the  extent  of 
its  appearance,  and  judgment  may  be  had  against  it  to  this  extent.  It  may, 
for  example,  decide  it  to  be  in  its  interest  to  object  to  the  jurisdiction  of  the 
court.  If  it  appear  for  this  purpose  it  is  and  can  only  \x  a  party  to  that 
extent.  For.  being  exempt  from  process,  it  determines  for  itself  the  extent  to 
which  it  can  safely  renounce  the  immunity  inherent  in  sovereignty,  and  that 
is  withdrawn  from  the  court  which  the  State  has  not  authorized  it  to  exer- 
cise. In  The  Siren  (7  Wallace.  132),  decide.l  in  1868,  the  Supreme  Court 
had  occasion  to  consider  not  merely  the  general  (juestion  but  a  specific 
application  of  it.  The  vessel  was  captured  in  the  harbor  of  Charleston  in 
February.  186.S.  in  the  attempt  to  violate  the  l)lockade  of  that  port.  It  was 
put  in  charge  of  a  prize  master  and  crew  and  ordered  to  Boston  for  adjudica- 
tion. Passing  through  Long  Island  Sound,  it  ran  into  and  sank  the  sloop 
Harper.  The  court  found  that  the  collision  was  the  fault  of  the  Siren. 
Arriving  at  Boston,  the  Siren  was  lil)elcd,  condemned  as  lawful  prize,  sold, 
and  the  proceeds  were  deposited  with  the  Assistant  Treasurer  of  the  United 
States  in  compliance  with  an  act  of  Congress,  where  they  remained  subject 
to  the  order  of  the  court. 

In  this  state  of  affairs,  the  owners  of  the  Harper  claimed  a  porti(Mi  of  the 
fund  because  of  the  collision,  due  to  the  fault  of  the  Siren,  and  intervened 
by  petition  for  this  purpose.  On  the  general  phase  of  the  question.  Mr.  Jus- 
tice Field  said: 


It  is  a  familiar  doctrine  of  the  common  law,  that  the  sovereign  cannot 
be  sued  in  his  own  courts  without  his  consent.  The  doctrine  rests  upon 
reasons  of  public  policy ;  the  inconvenience  and  danger  which  would  follow 
from  any  ditTcrent  rule.  It  is  dbvious  that  the  pulilic  service  would  he 
hindered,  and  the  public  safety  en<laiii:ere(l,  if  the  supreme  nuthority  could 
be  subjected  to  suit  at  the  instance  of  every  citizen,  and  consequently  con- 


•■     l' 


.«^ 


460  THE   UNITED  STATES*.  A  STUDY   IN    INTERNATIONAL  ORGANIZATION 

trolled  in  the  use  and  disposition  of  the  means  required  for  the  proper 
administration  of  the  government.  I  he  exemption  from  direct  suit  is, 
therefore,  without  exception.  This  doctrine  of  the  common  law  is  equally 
applicable  to  the  supreme  authority  of  the  nation,  the  United  States.  1  hey 
cannot  be  subjected  to  legal  proccetlings  at  law  or  in  equity  without  their 
consent;  and  whoever  institutes  such  proceedings  must  bring  his  case  within 
the  authority  of  some  act  of  Congress.  Such  is  the  language  of  this  court  in 
United  Slates  v.  Clarke.     (8  Peters,  444.) 

The  same  exemption  from  judicial  process  extends  to  the  property  ot 
the  United  States,  and  for  the  same  reasons.  As  justly  observed  by  the 
learned  judge  who  tried  this  case,  there  is  no  distinction  between  suits 
against  the  government  directly,  and  suits  against  its  property.' 

But,  while  this  is  no  doubt  true,  the  learned  Justice,  speaking  for  the  court, 
recognized  that  it  was  a  harsh  doctrine,  that  it  should  not  be  extended  beyond 
the  principle,  and  that  exceptions  should  be  allowed  to  it  in  the  interest  of 
justice,  where  such  exceptions  were  consistent  with  principle  or  sanctioned 
by  practice.  He  therefore  continued: 

But  although  direct  suits  cannot  be  maintained  against  the  United  States, 
or  against  their  property,  yet,  when  the  United  States  institute  a  suit,  ihey 
waive  their  exemption  so  far  as  to  allow  a  presentation  by  the  defendant  of 
set-offs,  legal  and  equitable,  to  the  extent  of  the  demand  made  or  property 
claimed,  and  when  they  proceed  in  rem,  they  open  to  consideration  all  claims 
and  equities  in  regard  to  the  property  libelled.  They  then  stand  m  such 
proceedings,  with  reference  to  the  rights  of  defendants  or  claimants,  pre- 
cisely as  private  suitors,  except  that  they  arc  exempt  from  costs  and  from 
affirmative  relief  against  them,  beyond  the  demand  or  property  in  con- 
troversy." 

Referring  to  the  particular  case,  Mr.  Justice  Field  stated  that  in  ad- 
miralty law  a  lien  is  created  in  favor  of  the  injured  party  against  the  vessel 
in  fault,  and  that  the  inability  of  the  private  person  to  enforce  the  lien  against 
the  Government,  withoiU  its  consent,  docs  not  invalidate  the  claim :  but  only 
prevents  its  allowance  in  an  ordinary  judicial  proceeding.  For  this  he  refers 
to  the  adjudged  cases  of  English  and  .American  courts,  holding  that  a  court 
would  enforce  a  mortgage  upon  land  conveyed  by  the  Government,  which  the 
Government  had  taken  subject  to  the  mortgage  of  the  previous  owner:  and 
that  claims  would  be  enforce<I  by  judicial  process  against  the  proceeds  of 
property  belonging  to  the  Government,  but  which  had  Ix-cn  sold,  under  decree 
of  the  court,  and  the  proceeds  pl.iced  within  its  jurisdiction.  After  stating 
that,  in  accordance  with  the  principles  of  maritime  law,  claims  upon  a  vessel 
extend  equally  to  and  are  satisfied  out  of  the  proceeds  of  the  sale,  the  learned 
Justice  thus  applies  this  doctrine  to  the  facts  of  the  Siren: 

'  7  Wallace,  15J-*. 
'Ibid..  154. 


IMMUNITY  OF  STATES  AND   NATKIXS  FROM   SUIT 


461 


Assuming,  therefore,  that  the  Siren  was  in  fault,  and  that  by  the  tort  she 
committed  a  claim  was  created  against  her.  we  do  not  perceive  any  just 
ground  lor  refusing  its  satisfaction  out  of  the  proceeds  of  her  sale.  The 
government  is  tlie  actor  in  the  suit  for  licr  condinmation  It  asks  for  her 
sale,  and  tiic  proceeds  coming  into  tlie  registry  of  the  court,  come  affected 
witli  all  the  clamis  which  cxiste<l  upon  the  vessel  created  suhsefjuent  to  her 
capture.  There  is  no  authority,  that  we  are  aware  of,  which  would  exempt 
thpm  under  these  circumstances,  because  of  the  exemption  of  the  govern- 
ment from  a  direct  proceeding  in  rem  against  the  vessel  whilst  in  its  custody.* 

In  support  of  these  views,  he  refers  to  United  States  v.  inider  (3  Sum- 
ner, 308).  decided  in  1838.  in  which  Mr.  Justice  Story,  sitting  at  circuit, 
held,  to  quote  Mr.  Justice  Field's  summary  of  the  case,  that  "  goods  of  the 
United  States  were  subject  to  contribution,  equally  with  goods  of  private 
shippers,  to  meet  the  expenses  incurred  in  saving  them;  "  and  also  to  the  case 
of  The  Schooner  Davis  and  Cargo  (6  Blatchford.  138).  decided  in  1868  in  the 
circuit  court  for  the  southern  district  of  Xew  York,  which  was  later,  upon 
appeal,  affirmed  by  the  Supreme  Court  of  the  United  States  (10  Wallace, 
15).  in  1869.  In  the  case  upon  appeal  it  was  held  that,  to  meet  salvage  services 
in  saving  vessel  and  cargo,  cotton  belonging  to  the  United  States  was  liable 
to  contribution  as  would  Iiavc  been  the  property  of  private  persons.  .After 
referring  to  The  Siren  (7  Wallace.  152)  and  Briygs  v.  The  Light  Boats 
(11  .Mien.  157).  "  as  perhaps  the  two  mo.st  authoritative  and  well  considered 
cases  on  that  siil)ject."  Mr.  Justice  Miller  thus  concluded  his  opinion  on  behalf 
of  a  unanimous  court: 

The  United  States,  without  any  violation  of  law  by  the  marshal,  was 
reduced  to  the  necessity  of  becoming  claimant  and  actor  in  the  court  to  .issert 
her  cl.iim  to  the  cotton.  I'ndcr  these  circumstances  we  think  it  was  the 
duty  of  the  court  to  enforce  the  lien  of  the  libellants  for  the  salvage  before 
it  restored  the  cotton  to  the  custody  of  the  oflicers  of  the  govermiient.- 

Cotton  not  only  troubled  the  American  but  the  English  courts,  in  which 
the  United  States  of  America  appeared  as  plaintiff  in  order  to  recover  the 
property  of  the  Confederacy  found  within  the  jurisdiction  of  Rmjland.  The 
Confederate  States  had  entered  into  a  contract  with  the  tirm  of  Frascr, 
Trenholm  &  Co.,  of  which  Prioleau  was  the  F.nglish  member,  by  virtue  of 
which  it  was  to  sell  all  the  cotton  of  the  Confederacy  sent  to  Europe,  to  buy 
eight  steamships  to  be  engaged  in  the  transportation  of  the  cotton  and  to 
pay  out  of  that  very  necessary  commodity  the  expenses  incident  to  the  con- 
tract and  the  undertaking,  advancing  in  first  instance  the  necessary  moneys. 
Twenty  thousand  pounds  had  already  been  expended  for  this  purpose.     A 

'7  \V,ill.ice,  1.S9. 
'  10  Wall.icc,  22. 


i  ="1 


:m^^' 


A    riaintiH 

KiliM.lin^ilrs 
a  I>t«rcc  •  i 
SuviTiiBnty 


462  THE  UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

particular  consignment  of  1365  bales  of  cotton  had  been  received  in  Liver- 
pool after  the  collapse  of  the  Confederacy,  and  the  United  States  filed  its 
bill  in  the  court  of  chancery,  praying  to  have  the  cotton  delivered  to  its 
agents  and  for  an  injunction  and  receiver. 

Leaving  ou  '>"  very  interesting  points  discussed  in  the  argument  and 
decision  of  this  .as. ,  it  is  sufficient  for  present  purposes  to  state  that  the 
court  decreed  that  the  United  States  was  entitled  to  the  cotton  by  the  law 
of  succession,  and  that  it  was  therefore  the  property  of  the  United  States 
government,  but  that  it  must  take  it  subject  to  the  obligations  entered  into 
respecting  it  by  the  dc  facto  Confederate  government.  The  defendant.  Prio- 
leau.  was  therefore  appointed  receiver,  with  pi.wer  to  sell  the  cntton;  but 
he  was  properly  required  to  give  security  for  its  value  beyond  £20.000.  that 
being  the  amount  of  the  defendant's  lien  (2  //.  &•  M.,  559). 

If  the  matter  had  ended  here,  this  case  would  not  be  cited,  as  we  are  deal- 
ing with  States  not  as  plaintiffs  but  as  defendants,  for  it  is  universally  ad- 
mitted that  a  sovereign  can  sue.  We  say.  olT-liand.  that  one  story  is  good 
until  another  is  told.  The  same  is  true  in  courts.  The  case  of  the  United 
States  was  ckar  until  Prioleau  told  his  .■^tory.  v.hich  he  did  by  filing  a  cross- 
bill to  obtain  discovery  from  the  United  States,  as  a  private  suitor  would  be 
required  to  give  under  the  circumstances.  Therefore,  in  the  second  phase 
of  this  case,  entitled  Prioleau  v.  United  States  and  Andre-.v  Johnson  (2  Law 
Rep..  Eq.,  63'>).  decided  in  1866.  Vice-Chancellor  Page  Wood,  later  Lord 
Chancellor  llatherlcy,  held  tliat  the  United  States,  suing  in  an  English  court, 
subjected  itself  to  the  jurisdictiMii  of  the  Court;  that  it  stood  in  the  same 
position  as  a  forcii,m  sovereign,  and  that  it  could  only  obtain  relief  subject  to 
the  rules  of  practi'-e  of  the  court  in  which  it  sued,  according  to  which  every 
suitor,  be  he  a  private  suitor,  a  foreign  sovereign,  or  a  corporate  body,  is 
entitled  to  discovery  upon  oath  concerning  the  matters  of  the  suit,  and  to  file 
a  cross-bill  for  the  purpose  of  obtaining  such  discovery.  Proceedings  were 
therefore  stayed  in  the  case  of  Prioleou  v.  77/.-  United  States,  suing  in  its 
corporate  capacity,  until  an  answer  should  be  put  in  to  the  cross-bill  of  the 
defendant. 

lu  the  course  of  his  decree,  Vice-Chancellor  Wood  intimated  that  a 
demurrer  shonM  have  been  filed  to  the  bill  of  the  United  States  in  that  cause, 
as  no  public  officer  was  put  forward  as  representing  its  intei  :sts  or  who 
could  be  calk<l  upon  to  give  discovery  upon  the  cross-bill.  Taking  advantage 
of  this  decision,  in  the  case  of  (')!(/.■</  Slates  v.  Wagner  (2  Law  Rep..  Chan- 
cery .\pp.  Cases.  582).  decided  in  1867,  the  defendant,  Wagner,  demurred 
to  the  bill,  praying  that  an  account  be  taken  of  the  moneys,  goods  and  ships 
which  had  come  into  the  possession  of  the  defendants  and  which  were 
claimed  by  the  United  States  as  successor  to  the  Confederacy,  on  the  ground 


IMMUNITY   OF   STATES   AND   NATIONS  FROM    SUIT 


463 


that  it  should  have  put  forward  the  President  of  the  United  States  or  some 
other  official  of  that  Government  upon  whom  process  could  be  served  by  the 
defendants  and  who  might  answer  to  the  cross-bill.  The  demurrer  was 
allowed  by  Vice  Chancellor  Wood,  but  from  this  decree  the  plaintiffs  ap- 
pealed. In  the  course  of  very  interesting  individual  opinions,  it  was  held  by 
Lord  Chancellor  Chelmsford  and  the  great  Lord  Cairns,  destined  shortly 
to  succeed  him  as  Lord  Chancellor,  that  a  foreign  State  adopting  the  repub- 
lican form  of  government  can  sue  in  the  courts  of  Great  Britain  in  its  own 
name;  that  such  a  State  is  not  bound  to  sue  in  the  name  of  any  officer  of  the 
Government  or  to  join  as  co-plaintiff  any  official  of  the  Gc.ernment,  or 
to  join  as  co-plaintiff  any  other  official  upon  whom  proces  i  may  be  served 
and  who  may  be  called  upon  to  give  discovery  upon  a  crcss-uill;  but  that 
the  court  may  stay  proceedings  in  the  original  dispute  until  the  means  of 
discovery  are  secured  in  the  cross  suit. 

In  what  may  be  called  the  third  and  final  phase  of  this  suit,  for  although 
the  three  were  separated  in  form  they  were  related  in  fact,  United  States  of 
America  v.  McRac  (8  Law  Rep.,  Eq.,  69),  decided  in  1869,  Vice  Chancellor 
James  thus  disposed  of  the  entire  matter,  for  the  reasons  briefly  stated  in 
the  head-note  to  the  case : 

Upon  the  suppression  of  a  rebellion,  the  restored  legitimate  government 
is  entitled,  as  of  right,  to  all  moneys,  goods,  and  treasure  which  were  pub- 
lic property  of  the  government  at  the  time  of  the  outbreak;  such  right  being 
in  no  way  affected  by  the  wrongful  seizure  of  the  property  by  the  usurping 
government. 

But  with  respect  to  property  which  has  been  voluntarily  contributed  to, 
or  acquired  by,  the  insurrectionary  government  in  the  exercise  of  its  usurped 
authority,  and  has  been  impressed  in  its  hands  with  the  character  of  public 
property,  the  legitimate  government  is  not,  on  its  restoration,  entitled  by 
title  paramount,  but  as  successor  only  (and  to  that  extent  recognising  the 
authority)  of  tlie  displaced  usurping  government;  and  in  seeking  to  recover 
such  property  from  an  agent  of  the  displaced  government  can  only  do  so  to 
the  same  extent  and  subject  to  the  same  rights  and  obligations  as  if  that 
government  had  not  been  displaced,  and  was  itself  proceeding  against  the 
agent. 

Therefore,  a  bill  by  the  United  States  government,  after  the  suppres- 
sion of  the  rebellion,  against  an  agent  of  the  late  Confederate  government, 
for  an  account  of  his  dealings  in  respect  of  the  Confederate  loan,  which  he 
was  employed  to  raise  in  this  country,  was  dismissed  \..ih  costs;  in  the 
absence  of  proof  tnat  any  property  to  which  the  Plaintiffs  were  entitled  in 
their  own  right,  as  distinguished  from  their  right  as  successors  of  the  Con- 
federate government,  ever  reached  the  hands  of  the  Defendant,  and  on  the 
Plaintiffs  declining  to  have  the  account  taken  on  the  same  footing  as  if  taken 
between  the  Confederate  government  and  the  Defendant  as  the  apent  of  such 
government,  and  to  pay  what  on  the  footing  of  such  account  might  be  found 
due  from  them. 


^i 


The 

Sovereign 
Becomet 
SubnrdiluM 
to  L*« 


Further 
Krnunciation 
o(   Immunity 
from   !*uit 

I'  »     • 

gov  f  reign 

Powct 


464  THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 

From  these  cases,  purposely  chosen  from  a  foreign  jurisdiction,  it  ap- 
pears: that  a  foreign  State  may  freely  sue.  but  that,  in  doing  so.  it  waives  us 
sovereignty  as  such  for  the  purposes  .nd  to  the  extent  of  the  suit;  that  it 
can  only  claim  rights  against  the  defendant  accorded  to  a  private  suitor; 'hat 
it  must  recognize  the  rights  of  the  defendant  according  to  the  aws  of  the 
country  in  which  the  suit  is  brought  and  that  it  may  be  made  a  defendant  in  a 
cross-bill  or  o»her  action  springing  out  of  the  transaction.  It  is  mteresting 
to  note  in  this  case,  that  the  illustrious  plaintiff,  having  failed  to  comply  with 
the  local  law  of  which  it  sought  the  benefit,  was  taxed  in  costs  as  any  other 
unsuccessful  or  unwilling  litigant. 

In  view  of  the  fact  that  a  sovereign  waives  its  immunity  by  appearing  as 
plaintiff  in  a  court  of  justice,  and  of  the  further  fact  that  in  asking  justice, 
it  is  obliged  to  do  it  at  the  instance  of  a  defendant,  the  question  arises 
whether  a  State,  stepping  down  from  the  pedestal  of  a  sovereign  by  enpging 
in  industry  or  trade,  may  not.  because  thereof,  be  held  to  renounce  its  im- 
munity from  suit  and  subject  itself  to  suit  as  a  corporation  or  private  person 
would  be  subjected  in  like  circumstances.  This  question  has  been  much  dis- 
cussed and  must  be  decided  if  the  State  as  such  is.  in  the  future  as  in  the 
past,  to  enter  into  competition  with  its  subjects  or  citizens  in  the  ordinary 

business  of  live.  . 

Thus  in  Bank  of  United  States  v.  Planters'  Bank  of  Georgia  (9  Wheaton. 
904.  907-8)  decided  as  long  ago  as  1824.  Mr.  Chief  Justice  Marshall  said: 

It  is  we  think,  a  sound  principle,  that  when  a  government  becomes  a 
partner  "in  any  trading  company,  it  divests  itself,  so  far  «  concerns  the 
[ransactions  of  that  company,  of  its  sovereign  character,  and  takes  hat  of 
a  private  citizen.  Instead  of  communicating  to  the  company  its  privileges 
and^s  prerogatives,  it  descends  to  a  level  with  those  with  whom  it  associates 
itself,  and  takes  the  character  which  belongs  to  its  associates,  and  to  the 
busings  which  is  to  be  transacted.  Thus,  many  States  of  this  Union  who 
have  an  interest  in  Banks,  are  not  suable  even  m  the.r  own  Courts;  yet  they 
never  exempt  the  corporation  from  being  sued  The  State  of  Georg'^-  ^f 
Riving  to  the  Bank  the  capacity  to  sue  and  be  sued,  voluntarily  f^rrps  n^eU 
of  its  sovereign  character,  so  far  as  respects  the  transactions  of  the  Bank, 
and  waives  all  the  privileges  of  that  character.  As  a  member  of  a  corpora 
tion.  a  government  never  exercises  its  sovereignty.  It  act.  "rerf'y J^  ^ 
corporator,  and  exercises  no  other  power  in  the  management  of  the  aflFairs 
of  the  corporation,  than  are  expressly  given  by  the  'n«-"%«:^t.ng  act. 

The  government  of  the  Union  held  shares  m  the  old  Bank  of  t^^  Un  ted 
States-  but  the  privileges  of  the  government  were  not  imparted  by  that 
circumstance  to  fhe  Bank.  The  United  States  was  not  a  party  to  suits 
brought  bv  or  against  the  Bank  in  the  sense  of  the  constitution.  So  with 
respect  to  the  present  Bank.  Suits  brought  by  or  against  it  are  not  under- 
stood to  be  brought  by  or  against  the  United  States.  The  government,  by 
Km  ngacor?o?ator.'laysdown  its  sovereignty,  so  f^'"  ^^^«P^«?.S  rnoi 
a^t^ons  of  the  corporation,  and  exercises  no  power  or  privilege  which  is  not 
derived  from  the  charter. 


IMMUNITY   OF  STATES   AND   NATIONS   FROM   SUIT 


465 


We  think,  then,  that  the  Tlanters'  Bank  of  Georgia  is  not  exempted 
is'"°a'"col^'"rat'or     *"  '^  *'°""'''  ^^  '*""  circumstance  that  the  State 

But.  in  national  as  well  as  in  international  law,  the  United  States  is  nv\ 
subject  to  suit  without  its  consent,  either  at  the  instance  of  a  citizen  or 
subject,  of  a  foreign  citizen  or  subject,  or  of  a  foreign  State  or  nation-  but 
by  the  Constitution  of  the  United  States,  State  may  sue  State,  and  has  often 
done  so.'  As  originally  drafted  and  as  construed  by  the  Supreme  Court,  a 
citizen  of  one  of  the  States  could  sue  another  State  of  the  Union;  but  its 
exercise  in  the  case  of  Chisholm  v.  Georgia  (2  Dallas,  415),  decided  in  1793. 
led  to  the  passage  of  the  11th  Amendment,  to  the  effect  that  the  judicial 
power  of  the  United  States  should  not  extend  to  such  a  suit.  The  United 
States  may  sue  a  State  of  the  American  Union.  The  United  States  are.  for 
purposes  of  suit,  regarded  as  a  State  within  the  meaning  of  the  Constitution 
as  solemnly  adjudged  in  United  States  v.  Texas  (143  U.  S..  621 ).  decided  in 
1892;  but  it  is  equally  well  settled  that  the  Government  of  the  United  States 
is  not  made  by  the  Constitution  suable,  without  express  consent,  by  State  or 
citizen.  However,  by  various  acts  of  Congress,  the  Federal  Government  has 
consented  to  be  sued,  in  a  limited  category  of  cases,  in  the  Court  of  Qaims. 
created  in  1855  for  this  purpose.  These  acts  are  in  terms  broad  enough  to 
include  States  as  well  as  private  persons.  As  amended  in  1912.  they  thus 
define  and  state  the  jurisdiction  of  the  present  Court  of  Claims: 

Sec.  145  The  Court  of  Qaims  shall  have  jurisdiction  to  hear  and 
determme  the   followmg  matters: 

First  All  claitns  (except  for  pensions)  founded  upon  the  Constitu- 
tion of  the  Lnited  States  or  any  laws  of  Congress,  upon  any  regulation  of 
an  hxecutive  Department,  upon  any  contract,  express  or  implied,  with  the 
Government  of  the  United  States,  or  for  damages,  liquidated  or  unliquidated 
in  cases  not  sounding  m  tort,  in  respect  of  which  claims  the  party  would  be 
entitled  to  redress  against  the  United  States  either  in  a  court  of  law  equity 
or  admiralty  if  the  United  States  were  suable.  .  .   .  ^     .^• 

Second.  All  set-ofTs,  counterclaims,  claims  for  damages,  whether  liqui- 
dated or  unliquidated,  or  other  demands  whatsoever  on  the  part  of  the  Gov- 
ernment of  the  United  States  against  any  claimant  against  the  Government 
m  said  court.' 

5/o)«°2'^voif*'°"  °'  "■"*"'■  '**  ^'  ^"  '^'°"'  ^*^"'^  Settlement  of  Controversies  Between 
•36  Statutes  at  Urge,  1136-7. 


AS.itc 

May  Sue 
Suta 


rt 


ri 


XXIII 
A  MORE  PERFECT  SOCIETY  OF  NATIONS 

H  .  a  favour!,  --jm  ^.^.-Jt^t  Hi.ory   whi.  i^^sj.^ 
shouldpursucarractK-a    object     That    5.  ^tn  ^^^^  ^^.^  ^^^^^^^^  „,   .^^  ,„,„,,.     (i„ 

?^r/ V.-'w.-v   rt'/^';«?Jo"  «/"»t»J.  '"-.Van  ,J.-.i.M.  .SSj.  P.  /.) 

To  K-  right,  to  ,ct  for  the  worU  a  standard  of  .rue  l.berty  and  true  iu,.ice:  tha,  ..  the 

we  wish  for  no  vic.or.e,  but  those  of  ;,„«;  '-  no  Ur^ritory  ^^^^^^^^^^^ 

resMCt  as  those  of  the  greatest  empire;  and  *«  deem  ine  oacr  ^^^.^  ^^^^ 

JhiffluVranty  of  the  weak  »«7»'j';j,Xa'"do°otfred>  Concede  to  every  American 
desire  any  rights  or  P"v.'''f »  ""^  f'°*'"  '  „  1>  t"  expand  our  trade,  to  grow  m  wealth 
republic.  We  wish  to  increase  our  P/''*^"'>J  u.  ,„,e  way  to  accomplish  this  is  not  to 
in'^wisdom.  and  in  »?;"»:  i'"'°%,^rS'l^,,,ohelp™"f"^^        to  a  common  prosi^nty 

There  are  no  international  controversies  so  »"-"^,f  fJ,J^\y,^^^aus«"of''d^:pute  so 
H  both'parties  really  desire  P^-"  ''V^^S^of  wir  if  "the?  p'aTty^really  desires  war. 
triflinK  that  they  cannot  be  made  the  »<:'**'""  ?|„*'.^,.,  „,irit  which  dea  s  with  them  is 
The  matters  in  dispute  between  ''^''""^.^Y^'^yj),^^^^^^^^^  the  Bmlding  for 

everything      (FMhu  Root.  -^f.-^Xa  ol    V/ay  //  V>S    .«   Latin  America  and  the  CnMcd 
the  Fan  Amerxcan  Inxon,   U  ashmgton,  May  ii,  'v<-°- 

Slates,  1917,  ft-  ^30-^31-) 

U  is  the  proper  end  of  government  -jeduce  .hi,  wretched  w^^^^^^ 

of  Political  Economy,  1S48.  I'ol.  2,  p-  5(>o> 


466 


CHAPTER  XXIII 

A    MORE    PERFECT   SOCIETY    OF    NATIONS 

The  Society  of  Nations  is  approximately  composed  of  fifty  States  claim-  Th» 
ing  to  be  sovereign,  free  and  independent.  The  more  perfect  Union  of  the  P'Mtm 
United  States  is  composed  of  forty-eight  States.  The  offic-al  delegates  of 
twelve  of  the  then  thirteen  sovereign,  free  and  independent  American  States 
who  met  in  Federal  Convention  in  the  city  of  Philadelphia  in  1787,  were 
faced  by  the  problems  which  confront  every  international  conference  in  which 
an  attempt  is  made  to  bring  and  to  keep  the  nations  in  closer  relations.  The 
greatest  of  these  problems  is  that  of  renouncing  in  the  common  interest  the 
exercise  of  certain  sovereign  rights,  while  retaining  unimpaired  the  exercise 
of  all  sovereign  rights  not  so  renounced.  The  line  of  demarkation  between 
what  may  be  safely  renounced  in  the  interest  of  all  and  what  it  is  essential 
to  retain  in  the  interest  of  each  is  always  difficult  to  draw.  That  the  prob- 
lem is  in  itself  not  insuperable  is  shown  by  the  success  of  those  delegates  of 
twelve  of  the  thirteen  American  States,  for,  as  Benjamin  Franklin,  a  dele- 
gate from  the  State  of  Pennsylvania,  said,  "  we  had  many  interests  to 
reconcile."  The  delegates  to  that  memorable  assembly  established  in  fact  and 
in  form,  a  union  for  legislative  purposes,  a  union  for  administrative  pur- 
poses, and  a  union  for  judicial  purposes,  which,  taken  together  and  acting 
in  cooperation  as  they  must,  since  each  depends  upon  the  other,  form  a  more 
perfect  Union  than  that  of  the  Society  of  Nations. 

The  delegates  in  Federal  Convention  did  not  merge  the  States  in  a  union, 
but  formed  a  union  of  the  States.  They  vested  the  legislative  branch 
with  eighteen  powers  of  legislation  only,  so  that  the  Union  is  from  this 
standpoint  one  of  enumerated  powers  merely.  The  executive  branch  of  the 
Union  possesses  no  powers  save  those  specified  in  the  instrument  of  its  crea- 
tion, and  any  attempt  on  the  part  of  the  legislative  or  the  executive  branch  to 
exercise  powers  in  excess  of  the  grant  contained  in  the  Constitution  is  de- 
clared null  and  void  and  of  no  effect  by  the  judicial  branch  of  the  Union.  .An 
atten-ipt  on  the  part  of  the  Union  to  exercise  a  power  in  excess  of  the  grant 
is,  in  an  appropriate  and  specific  case  presented  for  its  decision,  dccl.ired  to 
be  null,  void  and  of  no  effect  by  the  Supreme  Court  of  the  United  States. 
This  is  accomplished  without  the  use  of  force  against  the  Union  on  the  part 

467 


't^< 


■  r 

r  1 


♦•w* 


A 
rouiUa 

SululioB 


468  THE  UNITED  STATES:  A  STUDY   IN   INTEBNATIONAL  OlIUANl/ATION 

of  a  State  or  combination  of  States.    Only  the  individual  is  coerced.     The 
statute  may  remain  unrepealed,  for  it  has  ceased  to  possess  legal  validity. 

The  Society  of  Nations  may  not  be  willing,  and  indte<l  even  with 
good  will  may  not  be  able,  to  go  so  far  now  or  at  any  time  as  have  the 
States  forming  the  American  Union.  But  however  many  steps  they  may  take 
or  however  few  toward  the  closer  Union,  the  experience  of  the  framers  of 
the  Constitution  who  traversed  the  entire  path  should  be  as  a  lamp  to  their 

feet.  u  It 

Yet  we  must  not  imagine  that  the  Society  of  Nations  is  a  mere  phrase,    it 
is  a  body  politic  if  it  care  to  consider  itself  as  such,  for  which  statement  we 
have  the  authority  of  Rcspublica  v.  Swcers  (1  Dallas.  41).  decided  by  the 
Supreme  Court  of  Pennsylvania  in  1779.  at  a  time  when  the  Articles  of 
Confederation  were  still  unratified,  the  court  saying  that  "  from  the  moment 
of  their  association  the  United  States  necessarily  became  a  Ixxly  corporate; 
for  there  was  no  superior  from  whom  that  character  could  otherwise  be  de- 
rived."   On  two  occasions,  in  1899  twenty-six  nations  and  in  1907  forty-four 
nations  solemnly  recognized  in  the  Pacific  Settlement  Convention  of  The 
Hague  "  the  solidarity  which  unites  the  members  of  the  society  of  civilized 
nations."  thus  bringing  the  Society  of  Nations  within  the  rule  of  law  defining 
the  association  of  the  American  States.    They  can.  if  they  will,  frame  the  law 
for  the  Society  through  delegates  of  their  own  choice  meeting  in  conference 
at  stated  intervals  and  submitting  the  draft  of  their  lab.rs  for  ratification  to 
each  of  the  States  participating  in  the  conference,  thus  making  of  themselves 
a  legislature  ad  referendum.    In  like  manner  delegates  of  the  Nations  may  m 
conference  assembled  establish  a  court  of  the  Nations,  for  which  they  have  a 
precedent  in  the  Supreme  Court  of  the  American  Union,  which  can  declare 
and  apply  the  law  of  Nations  now  existing  or  as  made  by  their  delegates  m 
conference  and  ratified  by  each  of  the  Nations.     Delegates  of  twenty-six 
Nations  in  1899.  delegates  of  forty-four  Nations  in  1907  in  the  Pacific  Set- 
tlement Convention  declared  it  to  be  "  expedient  to  record  in  an  international 
agreement  the  principles  of  equity  and  right  on  which  are  based  the  security 
of  States  and  the  welfare  of  peoples."     It  can  l«  added  that  an  interna- 
tional court  of  justice  "  accessible  to  all  in  the  midst  of  the  independent 
Powers  "  would  not  onlv  extend  "  the  empire  of  law  "  and  strengthen  "  the 
appreciation  of  international  justice."  but  to  quote  still  further   from  the 
Pacific  Settlement  Convention  of  1809  and  1907.  that  it  would  also  make  for 
"  the  maintenarce  of  the  general  peace." 

Should  the  Powers  desire,  they  may  take  a  third  and  further  step^by 
vesting  their  diplomatic  representatives  residing  in  any  city,  such  as  The 
Hague,  under  the  presidency  of  the  resident  minister  of  foreign  affairs, 
with  such  jxjwers  of  supervision  .ind  of  initiative  as  to  them  shall  seem 


A    MORE   PERFECT  SOCIETY  OP   NATIONI 


469 


meet  and  proper.  The  delegates  of  the  I>ations  may,  if  they  are  willing, 
enter  into  a  more  perfect  Union,  and  in  conference  assembled  render 
the  Society  of  Nations,  as  delefjates  in  convention  rendered  the  Articles  of 
Confederation,  "  adequate  to  the  exigencies  of  government  and  the  preserva- 
tion of  the  Union." 


«#^i| 


APPENDIX 

A.     PLANS  OF  UNION  FOU  THE  C  OLOMES  ANO  THE  STATES 
OI'  NORTH  AMERICA.' 

I.    THE  NEW  ENGLAND  CONFEDERATION  OF  1643' 
Articles  of  Confederation   (ratified  September  7,  1643). 

ARTIC  LES 

of 

Confederation  betwixt  the   Plantations  under  the  C.ovemment  of  the 

Massachuscts,  the  I'lantations  under  the  Government  of  Plimouth, 

the  F'lantations  under  the  Government  of  Connfctccitl,  and  the 

Government  of  Xnc  ffmen,  with  the  Plantations  in 

Conibi'iation  therewith. 

Whereas  we  all  came  into  these  parts  of  America,  with  one  and  the  same  end 
and  ayme,  namely,  to  advance  the  Kingdome  of  our  Lord  Jesus  Christ,  and  to 
enjoy  the  liberties  of  the  Gospel,  in  purity  with  peace :  and  whereas  in  our  settling 
(by  a  wise  providence  of  God)  we  are  further  dispersed  upon  the  Sea-Coasts, 
and  Rivers,  then  was  at  first  intended,  so  that  we  cannot  (according  to  our  desire) 
with  convenience  communicate  in  one  Government,  and  Jurisdiction :  and  whereas 
we  live  encompassed  with  people  of  scverall  Nations,  and  strange  languages, 
which  hereafter  may  prove  injurious  to  us,  and  our  posterity:  And  forasimich 
as  the  Natives  have  formerly  committed  sundry  insolencies  and  outrages  upon 
severall  Plantations  of  the  English,  and  have  of  late  combined  themselves  against 
us  And  seeing  by  reason  of  the  sad  distractions  in  Emiland,  which  they  have 
heard  of.  and  by  which  they  know  wo  are  hindred  both  from  that  humble  way  of 
seeking  advice,  and  reaping  those  comfortable  fruits  of  protection  which,  at  other 
times,  we  might  well  expect ;  we  therefore  doe  conceive  it  our  bounden  duty,  with- 
out delay,  to  enter  into  a  present  Consotiation  amongst  our  selves,  for  nnituall 
help  and  strength  in  all  our  future  concernments,  that,  as  in  Nation,  and  Reli- 
gion, so,  in  other  respects,  we  be,  and  continue,  One,  according  to  the  tcnour  and 
true  meaning  of  the  ensuing  Articles 

>  For  the  texts  of  the  various  pl.ins  ai  scholarly  comment  upon  them,  see  Frederick  D. 
Stone,  Plans  for  the  Union  of  the  British  Jolonios  of  North  .\nicriia.  l(i4J-1776.  in  C;irson's 
looth  Annivenary  of  the  Constitution  of  tin-  (  nitcd  Slates.  1889,  V'^ol.  ii,  pp.  4J9-50.?.  For 
a  summary  of  early  plans  and  mikkisIioiis  of  Colonial  Union  see  also  Chapter  IV  in  Richard 
Frothmnhani's  Rite  of  the  Refut'dc  of  the  I'liited  States.  1872,  pp.  109-120. 

'  Reprinteil  from  the  Records  of  the  Colony  or  Jurisdiction  of  \eui  Haz-en,  C.  I.  Hoadly, 
(d  .  185K.  I".'   5''2-('. 

471 


472  THE   UNITED  STATES:    A   STUDY    IN    INTERNATIONAL  ORGANIZATION 

I.  Wherefore  it  is  fully  A  Teed  and  Concluded  by  and  between  the  parties,  or 
Jurisdictions  above  named,  and  they  doe  joyntly  and  severally  by  these  presents 
aprec  and  conclude,  That  they  all  be,  and  henceforth  be  called  by  the  name  of. 
The  United  Colonies  of  .\e7>.'-l-.nglaud. 

II.  The  said  United  Colonies  for  themselves,  and  their  posterities  doe  joyntly 
and  severally  hereby  enter  into  a  firm  and  perjjetuall  league  of  friendship  and 
amity,  for  offence  and  defence,  mutuall  advice  and  succour,  upon  all  just  occa- 
sions.'both  for  preserving  and  propagating  the  truth,  and  liberties  of  the  Gospel, 
and  f(jr  their  own  mutuall  safely,  and  wcllfare. 

in.  It  is  further  agreed.  That  the  Plantations  which  at  present  are,  or  here- 
after shall  be  settled  within  the  limits  of  tiie  Massachusets,  shall  be  forever  under 
the  Government  of  the  Massachusets.  And  shall  have  peculiar  Jurisdiction 
amongst  themselves,  as  an  intire  body;  and  that  PUmouth.  Connecticut,  and  AVif- 
Haven  sliall  each  of  them,  in  all  respects,  have  the  like  peculiar  Jurisdiction,  and 
Government  within  their  limits.  And  in  reference  to  the  Plantations  which  al- 
ready are  setled,  or  shall  hereafter  be  erected  and  shall  settle  within  any  of  their 
limits  respectively,  provided  that  no  other  Jurisdiction  shall  hereafter  be  taken  in. 
as  a  distinct  he.-i'd.  or  Member  of  this  Confederation,  nor  shall  any  other  either 
Plantation,  or  lurisdiction  in  present  being,  and  not  already  in  combination,  or 
un<ler  the  Jurisdiction  of  any  of  these  Confederates,  be  received  by  any  of  them, 
nor  shall  any  two  of  these  Confederates,  joyne  in  one  Jurisdiction,  without  consent 
of  the  rest.'  which  consent  to  be  Interpreted,  as  in  the  sixt  ensuing  Article  is 

expressed.  ,      ,  ,    „  •    .  ».r 

I\'  It  is  also  by  these  Confederates  agreed.  That  the  charge  of  all  just  Wars, 
whether  offensive,  or  defensive,  upon  what  part  or  Member  of  this  Confederation 
soever  they  fall,  shall  both  in  men,  provisions,  and  all  other  disbursements, 
be  born  by  all  the  parts  of  this  Confederation,  in  different  proportions,  ac- 
cording to  their  different  abilities,  in  manner  following,  namely.  That  the  Com- 
missioners for  each  Jurisdiction,  from  time  to  time,  as  there  shall  be  occasion, 
bring  a  true  account  and  numlK.'r  of  all  the  Males  in  each  Plantation,  or  any  way 
belonging  to,  or  under  their  severall  Jurisdictions,  of  what  quality,  or  condition 
soever  thev  be,  from  sixteen  years  old.  to  threescore,  being  inhabitants  there. 
And  that  according  to  the  different  numbers,  which  from  time  to  time  shall  he 
foun.l  in  e.-ich  U.ris<liction,  upon  a  true,  and  just  account,  the  service  of  men.  an<l 
all  charges  of  the  war,  he  born  by  the  poll:  Each  jurisdiction,  or  Plantation, 
being  left  to  their  own  just  course,  and  cusiome.  of  rating  themselves,  and  people, 
accor.ling  to  their  different  estates,  with  <l«e  respect  to  their  qualities  and  exemp- 
tions among  themselves,  though  the  Confederation  take  no  notice  of  any  such 
privilege.  And  that,  according  to  the  different  charge  of  each  Jurisdiction,  atid 
Plant.ation,  the  whole  adv.antage  of  the  War  <if  it  please  T.od  s„  to  ''lesse  their 
ende.-ivonrs)  whether  it  be  in  Lands.  Goods,  or  persons,  shall  be  proportionablv 
divided  among  the  said  Confederates.  ni     .  .•  ^ 

\  It  is  further  agree.l,  Thnt  if  anv  of  these  Jurisdictions,  or  any  Plantation 
un.kr  or  in  r,.mhinr.tinn  with  ti.cn,.  be  invaded  bv  anv  enemv  whomsoever,  upon 
notice    and   r-quest   of  anv   three   Magistrates  of   that   Jurisdiction   so  invaded. 


APPENDIX 


473 


The  rest  of  the  Confederates,  without  any  further  meeting  or  expostulation,  shall 
forthwith  send  ayde  to  the  Confederate  in  danger,  hut  in  different  proportion, 
namely  the  Massachiiscts  one  hundred  men  sufficiently  armed,  and  provided  for 
such  a  service,  and  journey.  And  each  of  the  rest  five  and  forty  men,  so  armed 
and  provided,  or  any  lesse  number,  if  Icsse  be  required,  according  to  this  pro- 
portion. Rut  if  such  a  Confederate  may  be  supplyed  by  their  next  Confederate, 
not  exceeding  the  number  hereby  agreed,  they  may  crave  help  there,  and  seek  no 
further  for  the  present.  The  charge  to  be  born,  as  in  this  .Article  is  expres.^ed. 
And  at  their  return  to  be  victualled,  and  supplied  with  powder  and  shot  (if  there 
be  need)  for  their  journey  by  that  Jurisdiction  which  imployed,  or  sent  for  them. 
Hut  none  of  the  Jurisdictions  to  exceed  these  numbers,  till  by  a  meeting  of  the 
Commissioners  for  this  Confederation,  a  greater  ayde  appear  necessary.  And 
this  proportion  to  continue,  till  upon  knowledge  of  the  numbers  in  each  Jurisdic- 
tion, which  shall  be  brought  to  the  next  meeting,  some  other  proportion  be  ordered, 
liut  in  any  such  case  of  sending  men  for  present  ayde,  whether  before  or  after 
such  order  or  alteration,  it  is  agreed.  That  at  the  meeting  of  the  Commissioners 
for  this  Confederation,  the  cause  of  such  war  or  invasion,  be  duly  considered, 
and  if  it  appear,  that  the  fault  lay  in  the  party  so  invaded,  that  then,  that  Juris- 
diction, or  Plantation,  make  just  satisfaction,  both  to  the  invaders,  whom  they 
have  injuried,  and  bear  all  the  charges  of  the  war  themselves,  without  requiring 
any  allowance  from  the  rest  of  the  Confederates  toward  the  same. 

.And  further,  if  any  Jurisdiction  see  any  danger  of  an  invasion  approaching, 
and  there  be  time  for  a  meeting.  That  in  such  case,  three  Magistrates  of  that 
Jurisdiction  may  summon  a  meeting,  at  such  convenient  place,  as  themselves  shall 
think  meet,  to  consider,  and  provide  against  the  threatned  danger.  Provided, 
when  they  are  met,  they  may  remove  to  what  place  they  please,  onely  while  any 
of  these  four  Confederates,  have  but  three  Magistrates  in  their  Jurisdiction,  a 
request  or  summons,  from  any  two  of  them,  shall  be  accounted  of  equall  force, 
with  the  three  mentioned  in  both  the  clauses  of  this  Article,  till  there  be  an  in- 
crease of  Magistrates  there. 

\T.  It  is  also  agreed,  That  for  the  managing  and  concluding  of  all  affaires 
proper  to,  and  concerning  the  whole  Confederation,  two  Commissioners  shall  be 
chosen  by,  and  out  of  the  foure  Jurisdictions,  namely  two  for  the  Massachiiscts, 
two  for  PlimoHth  two  for  Connecticut,  and  two  for  .\Vrc'-/i(7jr»i.  being  all  in 
Church-fellowship  with  us,  which  shall  bring  full  power  from  their  sever.ill 
generall  Courts  resjwctively.  to  hear,  examine,  weigh,  and  determine  all  att'.iires 
of  war,  or  peace,  leagues,  aydes,  charges,  and  numbers  of  men  for  war,  division 
of  sjioyles,  or  whatsoever  is  gotten  by  conquest,  receiving  of  more  confederates, 
or  Plantations  into  Combination  with  any  of  these  Confederates,  and  all  things 
of  like  nature,  which  are  the  proper  concomitants,  or  consequences  of  >ucii  a 
Confederation,  for  amity,  offence,  and  defence,  not  inlcmiedling  with  tiie  Cov- 
emmciit  of  any  of  the  Jurisdictions,  which  by  the  third  .Article,  is  preserved 
intirely  to  themselves.  But  if  these  eight  Commissioners  when  they  meet,  shall  not 
all  agree,  yet  it  is  concluded,  That  any  six  of  the  eight  agreeing,  shall  have  power 


m 


:m' 


I-  u 


,.#■. 


474  THE  UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

to  settle,  and  determine  the  businesse  in  question.  But  if  six  doe  not  agree,  that 
then  such  Propositions,  with  their  Reasons,  so  far  as  they  have  been  debated,  be 
sent,  and  referred  to  the  foure  Generall  Courts,  vis.  The  Massachuscts,  Plymouth. 
Coniiectcait,  and  New-haven.  And  if  at  all  the  said  Generall  Courts,  the 
businesse  so  referred.  l)e  concluded,  then  to  be  prosecuted  by  the  Confederates, 
and  all  their  Members.  It  is  further  agreed.  That  these  eight  Commissioners 
shall  meet  once  every  vear.  besides  extraordinary  meetings,  according  to  the  fifth 
Article  to  consider,  treat,  and  conclude  of  all  affaires  belonging  to  this  Confeder- 
ation, which  meeting  shall  ever  be  the  first  Thursday  in  September.  And  that 
the  nest  meeting  after  the  date  of  these  presents,  which  shall  be  accounted  the 
second  meeting,  shall  be  at  Boston  in  the  Massachnsets,  the  third  at  Hartford,  the 
fourth  at  \ev-haven,  the  fifth  at  Plimouth,  the  sixth  and  seventh  at  Boston;  and 
then  Hartford.  .\e7v-havcH,  and  Plymouth,  and  so  in  course  successively.  If  m 
the  mean  time,  some  middle  place  be  not  found  out,  and  .greed  on,  which  may  be 
comodious  for  all  the  Jurisdictions. 

\II.  It  is  further  agreed,  That  at  each  meeting  of  these  eight  Commis- 
sioners, whether  ordinary  or  extraordinary :  they  all,  or  any  six  of  them  agreeing 
as  before,  may  choose  their  President  out  of  themselves,  whose  Office  and  work 
shall  be.  to  take  care,  and  direct  for  Order,  and  a  comely  carrying  on  of  all  pro- 
ceedings in  the  present  meeting.  Rut  he  shall  be  invested  with  no  such  power  or 
respect,  as  by  which,  he  shall  hinder  the  propounding  or  progresse  of  any 
businesse,  or  any  way  cast  the  scales,  otherwise  then  in  the  precedent  Article  is 

agreed. 

\III.  It  is  also  agreed.  That  the  Commissioners  for  this  Confederation  here- 
after at  their  meetings,  whether  ordinary  or  extraordinary,  as  they  may  have 
Commission  or  opportunity,  doe  endeavour  to  frame  and  establish  .Agreements 
and  Orders  in  generall  cases  of  a  civil  nature,  wherein  all  the  Plantations  are 
interested,  for  preserving  peace  .imongst  themselves,  and  preventing  ( as  much  as 
may  be)  all  occasions  of  war,  or  differences  with  others,  as  about  the  free  and 
speedy  passage  of  Justice  in  each  Jurisdiction,  to  all  the  Confederates  equally,  as 
to  tlicir  own,  receiving  those  that  remove  from  one  Plantation  to  another,  without 
due  Certificates,  how  all  the  Jurisdictions  may  carry  it  towards  the  Indians,  that 
they  neither  grow  insolent,  nor  he  injuried  without  due  satisfr>ction,  hast  \\  ar 
break  in  upon  the  Confederates,  through  such  miscarriages.  It  is  also  agreed, 
That  it  any  Servant  run  awpy  from  his  Master,  into  any  other  of  these  Con- 
federated Juris<lictions,  That  in  such  case,  upon  the  Certific.ite  of  one  Magistrate 
in  the  Jurisdiction,  out  of  which  the  said  Servant  fled,  or  upon  other  due  proof, 
the  said  Servant  shall  be  delivered  cither  to  his  Master,  or  any  otlier  that  pursues, 
and  brings  such  Certificate,  or  proof.  .And  that  upon  the  escape  of  any  Prisoner 
whatsoever,  or  fugiti\e,  for  any  Criminall  Cause,  whether  breaking  Prison,  or 
getting  from  the  Officer  or  otherwise  escaping,  ujion  the  Certificate  of  two  Magis- 
trates of  the  Jurisdiction  oMt  of  which  the  escape  is  made,  that  he  was  a  prisoner 
or  su'-h  an  offender,  .at  the  time  of  the  escape.  The  Magistrates,  or  some  of  them, 
of  that  Jurisdiction  where  for  the  present  the  said  prisoner  or  fugitive  abideth, 


APPENDIX 


475 


shall  forthwith  grant  such  a  Warrant,  as  the  case  will  bear,  for  the  apprehending 
of  any  such  person,  and  the  delivery  of  him  into  the  hand  of  the  Officer,  or  other 
person  who  pursueth  him.  And  if  help  be  required  for  the  safe  returning  of  any 
such  offender,  it  shall  be  granted  unto  him  that  craves  the  same,  he  paying  the 
charges  thereof. 

IX.  .And  for  that  the  justcst  Wars  may  be  of  dangerous  consequence,  espe- 
cially to  the  smaller  Plantations  in  these  Viiitcd  Colonies,  it  is  agreed.  That 
neither  the  Massachiiscts,  Plymouth,  Connecticut,  nor  \ew-Harer.,  nor  any  of  the 
Menibers  of  any  of  them,  shall  at  any  time  hereafter  begin  undertake  or  engage 
themselves,  or  this  Confederation,  or  any  part  thereof  in  any  War  whatsoever 
( sudden  exigents  with  the  necessary  consequences  thereof  excepted,  which  are 
also  to  be  moderated,  as  much  as  the  case  will  permit)  without  the  consent  and 
agreement  of  the  forenamed  eight  Commissioners,  or  at  least  six  of  them,  as  i*^ 
the  sixt  Article  is  provided.  And  that  no  charge  be  required  of  any  of  the  Con- 
federates in  case  of  a  defensive  War,  till  the  said  Commissioners  have  met,  and 
approved  the  Justice  of  the  War,  and  have  agreed  ujion  the  sum  of  money  to  be 
levied;  which  sum  is  then  to  be  paid  by  the  severall  Confederates,  in  proportion, 
accc    ling  to  the  fourth  .Article. 

X.  Tli.it  in  extraordinary  occasions,  when  meetings  are  summoned  by  three 
M.-igistratc-  of  any  Jurisdiction,  or  two  as  in  the  tifth  .Article,  if  any  of  the 
Commissi-  n  come  not,  due  warning  being  given,  or  sent,  it  is  agreed.  That 
foure  of  Hk  Commissioners  shall  have  power  to  direct  a  War  which  cannot  be 
delayed,  and  to  send  tor  due  proportions  of  men,  out  of  each  Jurisdiction,  as  well 
as  six  might  doe.  if  all  met,  but  not  lesse  then  six  shall  determine  the  justice  of 
the  War,  or  allow  the  demands,  or  Bills  of  charges,  or  cause  any  levies  to  be 
made  for  the  same. 

.\I.  It  is  further  agreed.  That  if  any  of  the  Confederates  shall  hereafter  break- 
any  of  these  i)resent  .Articles,  or  he  any  other  way  injurious  to  any  one  of  the 
other  Jurisdictions  such  breach  of  .\greement,  or  injury  shalbe  duly  consitlered, 
and  ordered  by  the  Commissioners  for  the  other  Jurisdictions,  that  both  peace, 
and  this  present  Confederation,  may  be  intirely  preserved  without  violation. 

Lastly,  this  ixTpctuall  Confederation,  and  the  severall  .Articles  and  .Agree- 
ments thereof,  i.eiiig  read  and  seriously  considered,  both  by  the  Generall  Court 
for  the  Massachuscts,  and  b)  the  Commissioners  for  Plymouth.  Connecticut,  and 
A'i'Ti'-//(itr»i,  were  presently  and  fully  allowed  and  continued  by  three  of  the 
fore-named  Confederates,  namely  the  Massachiiscts,  Connecticut,  and  Xe:^- 
Ilaxcn:  in  testimony  whereof,  the  C.cnerall  Court  of  the  Massachuscts  by  their 
Secretary,  and  the  Conunissioners  for  Connecticut  and  Xet^'-Haren  subscribed 
them  the  19  day  of  the  third  month,  commonly  called  May,  .Inno  Domini.  1('4.V 

Only  the  Commissioners  from  Plymouth,  iiaving  brou^'ht  no  Commission  to 
conclude,  desired  respite  to  advise  with  their  Generall  Court,  which  was  granted, 
and  at  the  secoml  meeting  of  the  Commissioners  for  the  Confederazion,  held  at 
Boston  in  Scf<tember  following,  the  Commissioners  for  the  Jurisdiction  of  Plym- 
outh, delivered  in  an  Order  of  their  Generall  Court,  dated  the  29  of  Auoust,  1643, 


.'-if 


ir 


'*!?> 


476  THE   UNITED  STATES:   A   STUDY    IN    INTERNATIONAL  ORGANIZATION 

by  which  it  appeared  that  these  Articles  of  Confederation  were  read,  approved 
and  confirmed  by  the  said  Court,  and  all  their  Townships,  and  their  Commis- 
sioners authorized  to  ratifie  them  by  their  subscriptions,  which  they  accordingly 
did,  the  7  day  of  September,  1643. 


•^« 


II.    WILLIAM  PENN'S  PLAN  FOR  A  UNION  OF  THE  COLONIES, 

FEBRUARY  8,  1698.' 

[PlantaMon  General  Entries,  XXXIV  A.  102] 

A  Briefe  and  Piaine  Schcam  how  the  English  Colonies  in  the  North  parts  of 

America   \iz :    Boston   Connecticut   Road   Island   New   York    New   Jerseys. 

Pensilvania,  Maryland,  Virginia  and  Carolina  may  be  made  more  usefuU  to 

the  Crowne,  and  one  anothers  peace  and  safty  with  an  universall  concurrence. 

1".  That  the  severall  Colonies  before  mentioned  do  meet  once  a  year,  and 
oftener  if  need  be,  during  the  ■.  and  at  least  once  in  two  years  in  times  of 
peace,  by  their  stated  and  appoi/i'ed  Deputies,  to  debate  and  resolve  of  such 
measures  as  are  most  adviseable  i'jr  their  better  understanding,  and  the  publick 
tranquility  and  safety 

2.  That  in  order  to  it  two  persons  well  qualified  for  sence  sobriety  and  sub- 
stance he  appointed  by  each  Province,  as  their  Representatives  or  Deputies,  which 
in  the  whole  make  the  Congress  to  consist  of  twenty  persons. 

3.  That  the  Kings  Commissioner  for  that  purpose  specially  appointed  shall 
have  the  Cha'.re  and  preside  in  the  said  Congresse. 

4.  That  they  shall  meet  as  near  as  conveniently  may  be  to  the  most  centrall 
Colony  for  ease  of  the  Deputies. 

5.  Since  that  may  in  all  probability,  be  New  York  both  because  it  is  near  the 
Center  of  the  Colonies  and  for  that  it  is  a  Frontier  and  in  the  Kings  nomination, 
the  C,o\'  of  th.it  Colony  may  therefore  also  be  the  Kings  High  Commissioner 
daring  the  Session  after  the  m.inner  of  Scotland. 

6.  That  their  business  sliall  he  to  hear  and  adjust  all  matters  of  Complaint  or 
difference  between  Province  and  Province.  As  P'  where  persons  quit  their  own 
Province  and  goe  to  another,  that  they  may  avoid  their  just  debts  tho  they  be 
able  to  pay  them,  2^  where  offenders  fiy  Justice,  or  Justice  cannot  well  be  had 
upon  such  offenders  in  the  Provinces  that  entert.iine  them,  3''''  to  prevent  or  cure 
injuries  in  point  of  commerce,  4'\  to  consider  of  ways  and  means  to  support  the 
union  and  safety  of  these  Provinces  against  the  publick  enemies  In  which  Con- 
gresse the  Quotas  of  men  and  charges  will  he  much  easier,  and  more  equally  sett, 
then  it  is  possible  for  any  establishment  made  here  to  do;  for  the  Provinces, 
knowinK  their  own  condition  and  one  anothers.  can  debate  that  matter  with  more 
freedome  and  satisfaction  and  better  adjust  and  ballance  their  affairs 
respects   for   their  common   safty. 


all 


J 


1  Rt-priitlc'  from  n.-,-uy.-fttf-  Rrhirr  '..-.  (fc,-  Cnhnial  History  of  the  State  of  AVte  York, 
R.  Brodhcid,  1851  ed.   Vol.  IV,  pp,  296-7. 


APPENDIX 


477 


7"  That  in  times  of  war  the  Kings  High  Commissioner  shall  be  general!  or 
Chief  Commander  of  the  severall  Ouotas  mmn  orvire  against  the  Common  enemy 
as  he  shall  be  advised,  for  the  good  and  benefit  of  the  whole. 


HI.     BEXJAMIN   FRAXKLIXS   PLAX  FOR  A  TXIOX  OF  THE  SEV- 
ERAL COLOXIES.   ADOPTED  AT   ALIIAXV.  JULY   10,   1754.' 

PLAX  OF  UXIOX 

AlK.l'TED  BY   THE   CONVENTION   AT   Al.BANV  ;    WiTH   THE   REASONS   AND    MoTIVES 

FOR  Each  Article  of  the  Plan.= 

It  is  froposcd  tluit  humble  appUcation  be  made  for  an  act  of  Parliament  of 
Great  Britain,  by  iHrtue  of  zMeh  one  general  government  may  be  formed  in 
.Imerica,  including  alt  the  said  colonies,  icithin  oiid  under  ■kIucIi  government  each 
colony  may  retain  its  present  constitution,  except  in  the  particulars  uherein  a 
change  may  be  directed  by  the  said  act,  as  hereafter  follozcs. 

President-General  and  Grand  Coincil 

That  the  said  general  government  be  administered  by  a  President-General,  to 
be  appointed  and  supported  by  the  crown:  and  a  Grand' Council,  to  ho  chosen  by 
the  representatives  of  the  j)eopic  of  the  several  colonies  met  in  their  i-spectiv'e 
Assemblies. 

//  MIS  thought  that  it  would  be  best  the  president-general  should  be  supported 
as  well  as  appointed  by  the  crown,  that  so  alt  disputes  hetiK-een  liim  and  the  grand 
council  concerning  his  salary  might  be  prevented;  as  such  disputes  have  been  fre- 
quently of  mischiez'oiis  consequence  in  particular  colonies,  especiallx  in  time  of 
public  danger.  The  quit-rents  of  crown  lands  in  America  might  in  a  short  time 
I'e  suflicient  for  this  purpose.  This  choice  of  members  for  the  grand  council  is 
placed  in  tlie  house  of  representatives  of  each  government,  in  order  to  give  tlie 
people  a  share  in  this  ne-w  general  government,  as  the  crown  has  its  share  by  the 
appointment  of  the  president-general 

•R.'printcd.  with  the  pcrmissinn  nf  The  Macmillan  O.-iipanv  of  New  York    from  .^lliert 
Ht-nry    Smyth,   r/i.-   II  rttmgs  of  Benjamin  Franklin.   1907.   Vol.    iii,  pp.   m-2Z7      S<e   also 
Documc.'ils  Relalne  to  t'l,'  Coioiiial  lUsiory  of  .\c..    iurk-    \cl    vi    pp   889-891 
ujyj'  i,""''''"  ''^""'Pa/'i'^'l  the  text  of  the  .Articles  wi'th  comments  lure  reproih.ced  in 
Italics.     The  several  .Irtulcs.  as  oriKmally  adopted  are  printed  in  Roman  type 

\f,;Ll.l'"..  "^'"'^'}'  '^^'  f'^""'?"  r'-''J"  ^J^"''^  '"  ""^  c<do..,es  of  .New  Hampshire, 
Massachusetts.  Connecticut.  Rhode  stand.  Xew  York,  New  Jersey.  Pennsylvania,  .Marvland 
VirKinia    North  Carohna.  and  .South  Carolina.   (lieinK  .ill  the   British  Colonies  at  that  time 

\l.  Jnl  l.r'"V-  r'".'i  r'^'"'i  ™<l,-"^''»='  Scotia.)  "for  their  mutual  defence  and  sec  ,- 
nt>,  and  for  extendmg  the  liritish  settlements  in  North  .\merica."  .Another  plan  was  pro- 
posed in  the  Convention,  which  included  only  New   Hampshire.  Massachusetts  Connecticut. 

T  <'\'vi;  f"..-  \T  >''•  '■""'  ■>.''"  •'"'fy.^  ''"'"*  "•■'^  P""'""-''  '"  ""■  •  ''""II-  "■  the  COLLI- C- 
T  ()NS  of  the  Mas.^acliuselts  H-stoncal  Society  for  1800.     It  is  a  loui-h  draft  of  the  ahove 

A  «",nHpr  ';i,'rf  '.'-""'V'; "■'•','"  '•■'r;^';"P-  '«  *'."^''l  seem,  hy  the  //,.,/.  communicated  to  Mr. 
ofT,  n  „ll  ;",V."'  '•;'"*«^'f  didi.ot  at  tirst  contemplate  anyt' m^^  more  that  a  union 


^;  n 


47S  THE   UNITED  STATES:   A  STLDY    IN    INTERNATIONAL  ORGANIZATION 

B,.t  it  being  proposed  by  the  gentlemen  of  the  eouncil  of  Ne^v  York  and  some 
othe  eounelllLLg  the  commissioners,  to  alter  the  plan  in  "•"/-/•^■"":';"/. 
to  aire  the  governors  and  couneil  of  the  sereral  provinces  a  share  tn  the  cho  eof 
the  grand  council,  or  at  least  a  power  of  appror-rng  and  confirming  or  of  du- 
alhu-ing.  the  choice  made  by  the  house  of  representat.ves  ,t'..assa,d. 

"  That  the  government  or  conslUulion.  proposed  to  be  formed  by  the  plan 
consists  of  tu'o  branches:  a  president-general  appointed  by  the  crou'n    and  a 
^^cLn  by  the  people,  or  by  the  peoples  representatives,  uh.ch  ,s  the  same 

"""■•That  ^v  a  subsequent  article,  the  eouncil  chosen  by  the  people  can  effect 
nothing  ^dthont  the  consent  of  the  president-general  appointed  by  the  crown;  the 
erm^n  possesses  therefore  full  one  half  of  the  po:rr  of  '>>'^  f''"''''''''""- 

"  That  in  the  British  constitution,  the  cro-..n  ,s  supposed  to  possess  but  one 
third,  the  lords  baring  their  share.  ,,    ,      ., 

"  That  this  constitution  seemed  rather  more  favourable  for  the  cro.in. 

"  That  it  is  essential  to  English  liberty,  thai  the  subject  should  not  be  ta.red  but 
^V  his  o-.-n  consent,  or  the  consent  of  his  elected  reprcMn^es. 
■    •'  That  tave^  to  be  laid  and  levied  by  this  proposed  constUutwn  -.nil  be  pro- 
posed and  agreed  to  by  the  representatives  of  the  people,  if  the  plan  tn  th,s  par- 

*''"%ui inixTlroposed  alteration  should  take  place,  it  seemed  as  if  matters  may 
be  so  managed,  as  that  the  cro^.n  shall  finally  have  the  appointment,  not  only  of 
the  president-general.  but  of  a  majority  of  the  grand  councd:  for  seven  out  of 
eleven  governors  and  councils  are  appointed  by  the  cro-en:  .   .      „    •, 

•'  .l„d  so  the  people  in  all  the  colonies  icould  m  effect  be  ta.red  by  thexr 

qovcrnors.  ,    ,      .1  ;j  „;„.» 

"  It  'XK  therefore  apprehended,  that  such  alterations  of  the  plan  -.could  gue 
great  dissatisfaction,  and  that  the  colonies  could  not  he  easy  under  ^.«-/.  a  /.o«Tr 
i»  oovernors.  and  such  an  infringement  of  'chat  they  take  to  be  F.ngh.^h  hberty. 

'■'Besides  the  giving  a  share  in  the  choice  of  the  grand  councd  would  not  be 
eoual  with  respect  to  all  the  colonies,  as  their  constitutions  differ.  In  some,  both 
Governor  and  council  are  appointed  by  the  crown.  In  others,  they  are  both  ap- 
'pointed  hx  the  proprietors.  In  some,  the  people  have  a  share  in  the  choice  of  the 
council-  in  others,  both  government  and  council  are  wholly  chosen  by  the  people. 
Put  the  house  of  repre.u-ntatives  is  everywhere  chosen  by  the  people:  and.  there- 
fore. plac:,u,  the  right  of  choosing  the  grand  council  in  the  representativs  is  equal 
with  respect  to  all.  ■ 

■'  That  the  grand  council  is  intended  to  represent  all  the  several  houses  of  rep- 
resentatives of  the  colonies,  as  a  house  of  representatives  doth  the  several  tozvns 
or  counties  of  a  colony.  Could  all  the  people  of  a  colony  be  consulted  and  umte 
in  public  mea.u,res.  a  lwu.se  of  representatives  would  be  needless,  and  could  all 
the  .t.s.sembties  comrniently  consult  and  unite  in  general  measures,  the  grand 
cnuucil  7eould  be  unnecessary. 

"  That  a  house  of  commons  or  the  house  of  represenlalives.  and  the  grand 


APPENDIX  479 

council,  are  thus  alike  in  their  nature  and  intention.  And,  as  it  would  seem  inu- 
propcr  that  the  King  or  House  of  Lords  should  have  a  power  of  disallowing  or 
appointing  members  of  the  House  of  Commons;  so  likewise,  that  a  governor  and 
council  appointed  by  the  croatt  should  have  a  power  of  disallowing  or  appointing 
members  of  the  grand  council,  who,  in  this  constitution,  are  to  be  the  representa- 
tives of  the  people. 

"  If  the  governors  and  councils  therefore  were  to  have  a  share  in  the  choice 
of  any  that  are  to  conduct  this  general  government,  it  should  seem  more  proper 
that  they  choose  the  president-general.  But.  this  being  an  office  of  great  trust 
and  importance  to  the  nation,  it  was  thought  better  to  be  filled  by  the  immediate 
appointment  of  the  croivn. 

"  The  power  proposed  to  be  given  by  the  plan  to  the  grand  council  is  only  a 
concentration  of  the  powers  of  the  several  Assemblies  in  certain  points  for  the 
general  welfare;  as  the  potcer  of  the  president-general  is,  of  the  powers  of  the 
serrraJ  governors  in  the  same  points. 

"  And  as  the  choice  therefore  of  the  grand  council,  by  the  representatives  of 
the  people,  neither  gives  the  people  any  nezv  poxi-ers,  nor  diminishes  the  power  of 
the  crown,  it  was  thought  and  hoped  the  crown  leould  not  disapprove  of  it." 

Upon  the  whole,  the  commissioners  were  of  opinion,  that  the  choice  was  most 
properly  placed  in  the  representatives  of  the  people. 

Election  of  Members 

That  within  months  after  the  passing  such  act,  the  house  of  representa- 

tives, that  happen  to  be  sitting  -.cithin  that  time,  or  that  shall  be  especially  for  that 
purpose  convened,  may  and  shall  choose  members  for  the  grand  council,  in  the 
foUoidng  proportion,  that  is  to  say, 

hfassaehusett's  Bay 7 

AVti"  Hampshire,   2 

Connecticut 5 

Rhode  Island,   2 

Neic  i'ork, 4 

i\'«i'  Jersey,   3 

Pennsylvania,    6 

Maryland 4 

Virginia 7 

Xorlh  Carolina,    4 

South  Carolina, 4 


48 

//  tc'(M  thought,  that  if  the  least  cole  y  was  allowed  tivo,  and  the  others  in  pro- 
portion, the  number  zcould  be  very  great,  and  the  e.vpense  heavy;  and  that  less 
than  tzco  would  not  be  convenient,  as,  a  single  person  being  by  any  accident  pre- 
vented appearing  at  the  meeting,  the  coloiiy  lie  ought  to  appear  for  icoiiid  not  be 


480  THE   UNITED  STATES:   A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

represented.  That  as  the  ehoiee  u-as  not  mmedialely  popular,  they  would  be  gen- 
eralh  wen  of  good  abilities  for  business,  and  men  of  reputation  for  integrity:  and 
that  fortv-eight  such  men  might  be  a  number  sutTuient.  But  though  tt  was  thought 
reasonable  iluil  each  colony  should  have  a  share  in  the  representatire  body  m  sowe 
degree  according  to  the  proportion  it  contributed  to  the  general  treasury,  yet  the 
proportion  of  wealth  or  power  of  the  colonies  is  not  to  he  judged  by  the  propor- 
tion here  fixed;  because  it  uvs  at  first  agreed,  that  the  greatest  colony  should  not 
have  more  than  seven  members,  nor  the  least  less  than  two:  and  the  setting  these 
proportions  between  these  fwo  extremes  «•«  not  nicely  attended  to.  as  it  XiwiUt 
find  itself,  after  the  first  election,  from  the  sums  brought  into  the  treasury,  as  by 
a  subsequent  article. 

Place  of  First  Meeting 

who  shall  meet  for  the  first  time  at  the  city  of  Philadelphia  in  Pennsylvania, 

being  railed  by  the  President-General  as  soon  as  conveniently  may  be  after  his 
apiHjintnicnt. 

Philadelphia  ivas  named  as  being  nearer  the  centre  of  the  colonies,  where  the 
commissioners  would  be  'well  and  cheaply  accommodated.  The  high  roads. 
through  the  whole  e.rtent.  are  for  the  most  part  very  good,  in  which  forty  or  fifty 
miles  a  day  tr.av  very  well  be.  and  frequently  are.  travelled.  Great  part  of  the 
jfav  may  like-wise  be  gone  by  water.  In  summer  time,  'he  passages  are  frequently 
performed  in  a  -week  from  Charleston  to  Philadelphia  and  Xe-w  York;  and  from 
Rhode  Island  to  Xe-w  York  through  the  Sound,  in  t'wo  or  three  days;  and  from 
Xe-w  York  to  Philadelplua.  by  water  and  land,  in  two  days,  by  stage,  boats  and 
wheel  carriages  that  set  out  every  other  day.  The  journey  from  Charleston  to 
Philadelphia  may  like-u-ise  be  facilitated  by  boats  running  up  Che.  peake  Bay 
three  hundred  miles.  But  if  the  -whole  journey  be  performed  on  horseback,  the 
most  distant  members,  vie.  the  t:.o  from  X,-w  Hampshire  and  from  South  Caro- 
lina may  probably  render  themselves  at  Philadelphia  in  fifteen  or  fwenty  days;  the 
majority  may  be  there  in  much  less  time. 

New  Election 

That  there  shall  be  a  new  election  of  the  members  of  the  Grand  Council  every 
three  years ;  and.  on  the  death  or  resignation  of  any  member,  his  place  should  be 
supplied  by  a  new  choice  at  the  next  sitting  of  the  Assembly  of  the  colony  he 
represented. 

Some  colonies  ha:-e  annual  assemblies,  some  continue  during  a  governor's 
pleasure:  three  vears  ti-oj  though  a  reasonable  nudium,  as  affording  a  new  mem- 
ber time  to  improve  himself  in  ,  c  business,  and  to  act  after  such  impro7-ement, 
and  \et  giz'ing  opportunities,  frequently  enough,  to  change  him,  if  he  has  mis- 
behaved. 

Proportion  of  Members  After  the  First  Three  Years 

Thi:  after  the  first  three  years,  when  the  proportion  of  money  arising  out  oi 


APPENDIX  481 

onch  colony  to  the  general  treaMiry  can  be  known,  the  number  of  members  to  be 
chosen  for  each  colony  shall  from  time  to  time,  iti  ail  ensuing  elections,  be  regu- 
lated by  that  proportion,  ui  >n  as  that  tlu'  number  to  \>e  chosen  by  any  one 
I>rovince  be  not  more  th.iii  seven,  nor  less  than  two. 

Py  a  suh^rqiinit  arthtr  it  is  frnfoscd.  that  the  ocneral  council  shall  lay  and 
/cj  V  si(f/i  general  duties,  us  t,<  them  may  afpear  most  e.:Hal  and  least  burlhen- 
somc.  &c.  Suff>ose,  for  instance,  they  lay  a  small  duly  or  c.vcise  on  some  com- 
modity imported  into  or  made  in  the  colonies,  and  fretly  ijenerally  and  equally 
u.<!cd  in  all  of  them,  as  rum  (•erhaf<s.  or  ^i-ine;  the  yearly  produce  of  this  dutv  or 
erase,  if  fairly  collected,  uonld  be  in  some  colonies  greater,  in  others  less,  as  the 
colonies  are  greater  or  smaller,  irhen  the  collector's  accounts  are  brought  in, 
the  fro  fort  ions  Mil  affear;  and  from  them  it  is  proposed  to  regulate  the  propor- 
tion of  representatives  to  be  chosen  at  the  next  general  election,  t.ithin  .he  limits 
ho:,-  Tcr  of  se^en  and  lu-o.  These  numbers  may  therefore  vary  in  the  course  of 
years,  as  the  colonies  may  in  the  growth  and  increase  of  people.  And  thus  the 
quota  of  ta.r  from  each  colony  -uould  naturally  rarv  Mlh  its  circutnstances  thereby 
preventing  all  disputes  and  dissatisfaction  about  the  just  proportions  due  from 
each:  which  might  othencise  produce  pernicious  con.<^equences.  and  destroy  the 
harmonx  and  good  agreement  that  ought  to  subsist  betz.een  the  several  parts  of 
the  I'nion. 

^^ERTI^•(;s  OF  THE  Grand  Gkncil,  and  Call 

That  the  Grand  Council  shall  meet  once  in  every  year,  and  oftener  if  occasion 
require,  at  such  time  and  place  as  thjy  shall  adjourn  to  at  the  last  preceding 
meeting,  or  as  they  shall  be  called  to  meet  at  by  the  President-General  on  any 
emergency:  he  having  first  obtained  in  writing  the  consent  of  seven  of  the  mem- 
bers to  such  call,  antl  sent  due  and  timely  notice  to  the  whole. 

//  was  thought,  in  establishing  and  governing  new  colonies  or  settlements, 
regulating  India»  trade,  Indian  treaties,  &c.,  there  would  be  every  year  sutlicien't 
business  arise  to  require  at  least  one  meeting,  and  at  such  meeting  many  things 
might  he  suggested  for  the  benefit  of  all  iU  colonies.  This  annual  meeting  may 
either  be  at  c  time  or  place  certain,  to  be  fixed  by  the  president-general  and  grand 
council  at  their  first  meeting:  or  left  at  liberty,  to  be  at  such  time  and  place  as 
they  shall  adjourn  to,  or  be  called  to  meet  at  by  the  president-general. 

hi  time  of  war  it  seems  convenient,  that  the  meeting  should  be  in  that  colony, 
which  is  nearest  the  seat  of  action. 

The  pozirr  of  calling  them  on  any  emergency  seemed  necessarx  to  be  vested 
in  the  president-general :  but.  that  such  power  might  not  be  wanto.ily  used  to 
harass  the  members,  and  oblige  them  to  mike  frequent  long  journexs  to' little  pur- 
pose, the  consent  of  seven  at  least  to  such  call  teas  supposed  a  convenient  guard. 

CoXTINL'ANCE 

That  the  Grand  Council  have  power  to  choose  their  speaker:  and  shall  neither 
be  dissolved,  prorogued,  nor  continued  sitting  longer  than  si\-  wet-k-i  at  one  time 
without  their  own  consent  or  the  sjiecial  command  of  the  crown. 


M 


m 


'ii 


m^^ 


482  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

The  speaker  should  bf  presented  for  approbation;  it  being  convenient,  to  pre- 
vent misunderstandings  and  disgusts,  that  the  mouth  of  the  counnls  should  b.  a 
terson  aareeable.  if  possible,  both  to  the  council  and  president-general. 

Governors  have  sometimes  wantonly  exercised  the  power  of  proroguing  or 
continuing  the  sessions  of  assemblies,  merely  to  harass  the  '"'•!"f^7"'^/;3 
a  compliance:  and  somet.mes  dissolve  them  on  slight  disgusts.  Tlus  ttu.s  feand 
might  be  done  b,  the  president-general.  if  not  provulcd  agamsl;  <"><"'"."''''; 
venience  and  hardship  would  be  greater  in  the  9/-^'^'^^  ^jn-frnment  hanjn  ar- 
ticular  colonics,  in  proportion  to  the  distance  the  members  must  be  from  home 
during  sittings,  and  the  long  journeys  some  of  them  must  necessarily  take. 

Members'  Allowance 

That  the  memhers  of  the  Grand  Council  shall  he  allowed  for  their  service  ten 
shillings  sterling  per  diem,  during  their  session  and  journey  to  and  from  the  p.a.e 
of  meeting:  twcntv  miles  to  be  reckoned  a  day's  journey. 

//  uvs  thomiht' proper  to  allow  some  wages,  lest  the  expense  m,ght  deter  some 
suitable  persons  from  the  scr^'ice:  and  not  to  allow  too  great  t.a.^..,  lest  unsioT- 
able  persons  should  be  tempted  to  cabal  for  the  employment.  f''r'''''f'tZ:s 
Twcntv  miles  were  set  down  as  a  day's  journey,  tc  allow  for  accidental  h.ndances 
on  the  road,  and  the  greater  expenses  of  travelling  than  residing  at  the  place  of 

meeting. 

Assent  of  Tresident-General  and  His  Uuty 

That  the  assent  of  the  President-General  be  requisite  to  all  acts  of  the  Grand 
Council,  and  that  it  be  his  office  and  duty  to  can  -  them  to  be  earned  mto  exe- 

*^"*'77if  assent  of  ,!re  president-general  to  all  acts  of  the  grand  council  zvas  made 
necessary,  in  order  to  qive  the  crown  its  due  share  of  influence  xn  tins  govern- 
ment  and  connect  it  with  that  of  Great  Britain.  The  prcsidcnt-general.  besides 
one  half  of  the  legislative  power,  hath  in  his  hands  the  whole  executive  power. 

Power  of   Pre«ident-Genfral   and  Grand  Coincil; 
Treaties  of  PEArr,  and  War 

That  the  President-General,  with  the  advice  of  the  Grand  Council,  hold  or 
direct  all  Indian  treaties,  in  which  the  general  interest  of  the  colonies  may  be 
concerned :  and  m.-ike  pe.ice  or  declare  war  with  Indian  nations. 

The  power  of  making  peace  or  war  with  Indian  nations  is  at  present  supposed 
to  be  in  rverv  colonv.  and  is  expressly  granted  to  some  by  charter,  so  that  no  new 
power  is  hereby  intended  to  he  granted  to  the  colonies,  nut  as.  in  consequence  of 
thii  power,  one  colons  miqht  make  peace  -.i-ilh  a  nation  that  another  was  justly 
engaged  in  war  '.i-ith :  or  make  war  on  slight  occasions  without  the  concurrence  or 
approbation  of  ndohhoiiring  colonies,  greatly  endangered  by  it;  or  make  par- 
#.v,,r,r  ircnt'r,  „f  „emrality  in  case  of  a  general  Jivr.  to  their  07vn  private  advan- 
tage in  trade    by  supplying  the  common  enemy;  of  all  whtch  there  have  been 


APPENDIX 


483 


instances:  it  uvs  Ihoughl  bell  ft,  to  have  all  treaties  of  a  general  nature  under 
a  (/eneral  direftion,  that  so  the  good  of  the  whole  may  be  consulted  and  proinded 

for. 

Indian  Trade 

That  they  make  such  laws  as  they  judge  necessary  for  regulating  all  Indian 
trade. 

Many  quarrels  and  uvrs  have  arisen  between  the  colonics  and  Indian  nations, 
tliniuf/h  the  bad  conduct  of  traders  who  cheat  the  Indians  after  making  them 
drunk.  Crc,  to  the  great  expense  of  the  colonies,  both  m  blood  and  treasure.  Par- 
tuular  colonics  arc  so  interested  in  the  trade,  as  not  to  be  idlling  to  admit  such  a 
rcgiilalion  as  might  be  best  for  the  whole;  and  therefore  it  woj  thought  best  under 
a  general  direction. 

Iniian  Purchases 

Thnt  they  make  all  purchases,  from  Indians  for  the  crown,  of  lands  not  now 
within  the  hounds  of  particular  colonies,  or  that  shall  not  be  within  their  bounds 
when  some  of  them  are  reduced  to  more  convenient  dimension?. 

Purchases  from  the  Indians,  made  by  private  persons,  have  been  attended  with 
many  inconveniences.  They  haz-e  frequently  interfered,  and  occasioned  uncer- 
tainty of  titles,  many  disputes  and  expensive  law  suits,  and  hindered  the  settle- 
ment of  the  land  so  disputed.  Then  the  Indians  have  been  cheated  by  such  pri- 
vate purchases,  and  discontent  and  wars  have  been  the  consequence.  These  would 
be  prevented  by  public  fair  purchases. 

Sezrral  of  the  colony  charters  in  America  e.rtend  their  bounds  to  the  South 
Sea,  which  may  be  perhaps  three  or  four  thousand  miles  in  length  to  one  or  two 
hundred  miles  in  breadth.  It  is  supposed  they  must  in  time  be  reduced  to  dimen- 
sions more  convenient  for  the  common  purposes  of  gozvrnmcnt. 

I'cry  little  of  the  land  in  those  grants  is  yet  purchased  of  the  Indians. 

It  is  much  cheaper  to  purchase  of  them,  than  to  take  and  maintain  the  pos- 
session by  force :  for  they  are  generally  very  reasonable  in  their  demands  for  land; 
and  the  expense  of  guarding  a  large  frontier  against  tlieir  incursions  is  vastly 
great;  because  all  must  be  guarded,  and  always  guarded,  as  ive  know  not  where 
or  when  to  exi)ect  them. 

New  Settlements 

That  they  make  new  settlements  on  such  purchases,  by  granting  lands  in  the 
King's  name,  reserving  a  quit-rent  to  the  crown  for  the  use  of  the  general 
treasury. 

It  is  supposed  better  that  there  should  be  one  purchaser  than  many;  and  that 
the  crozcn  should  be  that  purchaser,  or  the  Union  in  the  name  of  the  crown.  By 
this  means  the  bargains  may  be  more  easily  made,  the  price  not  enhanced  by 
numerous  bidders,  future  disputes  about  private  Indian  purchases,  and  monopo- 
lies of  T'l!,!.'  tracts  to  partiiiilar  h.-rtniif  Czi'liich  are  prcindicial  tr>  the  srllli'mrnt 
and  peopling  of  the  country),  prevented;  and,  the  land  being  again  granted  i,i 


0^^ 


484  THE   t-NITEO  STATE.:   A   »TVI>V   IN    IHTEBNATION AL  OUCANIZATIOH 

sm<»ll  iraci,  to  the  scUkrs.  the  quit-renls  resenrd  may  m  time  become  a  fund  for 
sunort  of  oovernmenl.  for  def.me  of  the  counlry.  ease  of  taxes  i-c 

StrL  forts  on  the  Lakes,  the  Ohio.  Ac.  may.  at  the  same  t.me  they  secure 
our  trJJt  frontiers,  ser^e  to  defend  new  colonies  settled  nnder  the.  protect^- 
and  such  colonies  uould  also  ,nutually  defend  and  iupfort  such  forts,  and  better 
secure  the  friendship  of  the  far  Indians. 

A  tarlicular  colony  has  scarce  strength  enough  to  extend  itself  by  ne..  se^le- 
mentsat  so  great  a  disr-^e  from  the  old:  but  the  foint  force  of  "  »;-  ^^ 
suddenh  establish  a  :  colony  or  two  in  those  parts,  or  extend  an  old  colony 
to  particular  passes,  greatly  to  the  security  of  our  present  fj;""'''"- ;'[''''' j;/. 
trade  and  people,  breakin,,  off  the  French  communication  between  Canada  and 
Louisiana,  and  speedy  settlement  of  the  intermediate  lands. 

The  power  of  settlin,,  new  colonies  is  therefore  thought  a  valuable  fart  of  the 
plan,  and  what  cannot  so  well  be  executed  by  t:co  unions  as  by  one. 

Laws  t(i  r,.nF.RN  Them 
That  thev  make  laws  for  regulating  and  governing  such  new  settlements,  till 
the  .rown  shall  think  fit  to  form  them  into  particular  governments. 

The  making  of  laws  suitable  for  the  new  colonies,  it  was  though,  would  b. 

properly  rested  in  the  president-general  and  grand  council;  under  whose  protec- 

fl  r/.rv  must  at  first  necessarily  be.  and  who  would  be  well  "-;"'^"";''  ';  '^ 

heir  circumstances,  as  having  settled  tliem.     llhen  they  are  become  siMcienUy 

populous,  they  may  by  the  crown  be  formed  into  complete  and  distinct  govern- 

*"'"r;.r  appointment  ,.;  a  suh-president  hy  thr  cr.  wn.  to  take  place  in  case  of  the 
death  or  absence  of  the  president-general,  would  perhaps  be  an  ''"tro'^'"'fJ 
the  plan:  and  if  all  the  governors  of  particular  provinces  were  to  «"•  /"^'"'^  ' "^ 
a  Jnuling  council  of  stale,  for  the  advance  and  as.utance  of  the  presidcnt-general. 
it  might  be  a.iother  considerable  improvement. 

Raise  Soi.diers  .wn  F.oriP  Vessels.  &c. 

That  they  raise  and  pay  soldiers  and  huild  forts  for  the  f^-f'-'^'^^/^^y  "!/;;; 
colonic,  and  e.,u,,.  vessels  of  force  to  guard  the  coasts  and  protect  the  tr.ul  on 
thlTol^an.  l.kcl.  ir  great  rivers;  hut  they  shall  not  in,press  n,en  m  any  colony, 
without  the  consent  of  the  legislature.  . .  .       ,  ,      ,^ 

I  .as  thoujhi.  that  guotas  of  men.  to  be  raised  and  paid  by  ""•  ^ "•<-'; '^- 
,„V.  and  ,oJlfor  any  public  service,  could  not  always  be  got  together  with  the 
necessary  extcdition.  Vor  instance,  suppose  one  thousand  men  should  be  want,  d 
",(■/«■  Hampsiiire  on  any  emergency.  To  fetch  them  by  fifties  and  hundreds  out 
oierery  colony,  as  far  as  .South  Carolina,  would  be  inconvenient,  tiie  transpor- 
tation  chargeable,  and  the  occasion  perhaps  pa..sed  before  they  could  be  assem- 
bled and  therefore  that  it  would  be  best  to  raise  them  (by  offering  bounly-nioney 
aid  ray  >  nc^r  ike  p'ace  where  they  would  be  wanted,  to  be  discharged  again  when 
the  senice  should  he  over.  , 

Particular  colonics  arc  at  present  backward  to  build  forts  at  their  own  ex- 


AI'l-ESDIX 


485 


f,Hsi-.  uhich  they  say  mII  hf  fijually  useful  to  their  neighbouring  colonies:  ti ho 
refuse  to  join,  on  a  fresumflion  that  such  forts  will  fri-  built  and  kept  up,  thouyh 
tltiv  contribute  nothing.  I  his  rnjust  conduft  urakens  the  whole;  but  the  forts 
being  for  the  good  of  the  uliole.  it  uus  thought  lust  they  should  be  built  and 
maintained  b\  the  U'/m/i',  mil  of  the  common  "easury. 

In  the  lime  of  uor.  siiuill  jr...//  of  force  are  sometimes  necessary  in  ihe  colo- 
nies to  scour  the  coas's  of  smM  privateers.  These  being  proi'ided  by  Ihe  Union 
uill  be  an  <idranhi,u'  m  turn  to  the  iolonies  uhich  are  situated  on  the  sea,  and 
ivho.te  frontiers  on  Ihe  Imidside.  being  loTcrcd  oy  other  c>'lonies,  reap  but  Utile 
immediate  benefit  from  Ihe  advanced  forts. 

PowKR  TO  Make  Laws.  Lav  Di  ties,  &t. 

That  for  these  purposes  they  have  power  to  make  law*,  and  lay  and  levy  such 
jjencral  duties,  im|x)sts,  or  taxes,  as  to  iheni  sliall  .ippe.ir  most  equal  and  just 
( considering  the  ability  and  other  circumstances  of  thi-  inhabitants  in  the  several 
colonies),  and  such  as  may  be  collected  with  the  least  inconvenience  to  the  people; 
rather  discouraging  luxury,  than  loading  indu'.try  with  unnecessary  burthens 

The  laus  which  Ihe  president-general  and  grand  council  arc  empoxccrcd  to 
make  are  such  only  as  shall  be  necessary  for  Ihe  government  of  the  scllleiiienis; 
the  raising,  regulating,  and  paying  soldiers  for  the  general  ser-,-ice:  the  regulating 
of  Indian  trade;  and  laying  and  collecting  the  general  duties  and  la.xcs.  They 
.thould  also  have  a  power  to  restrain  the  exportation  of  provisions  to  the  enemy 
from  any  of  the  colonies,  on  particular  occasions,  in  lime  of  war.  Hut  it  is  not 
intended  that  they  may  interfere  with  the  constitution  and  government  of  the  par- 
ticular colonies;  7iho  are  to  be  left  to  their  ou-n  /awx,  and  to  lay,  levy,  and  apply 
their  own  ta.res  as  hefrre. 


General  Theasi-rer  and  Particvlar  Treasirer 

Th.it  they  may  appoint  a  General  Treasurer  and  Particular  Treasurer  in  each 
government,  when  necessary ;  and  from  time  to  time  may  order  the  sums  in  the 
treasuries  of  each  government  into  the  general  treasury;  or  draw  on  them  for 
speci.al  payments,  as  they  find  most  convenient. 

The  trca.uirers  here  meant  are  only  for  the  general  funds,  and  vnt  for  the  par- 
ticular funds  of  each  colony,  u/iiV/i  remain  in  the  hands  of  their  oiw.  treasurers 
at  their  own  disposal. 

Money,  How  to  Issie 

Yet  no  money  to  i^sue  but  by  joint  orders  of  the  President-General  and  r.rand 
Council ;  except  where  sums  have  been  api)ropriated  to  particular  purposes,  and 
the  Preside-it-i^'-.iei.il  i-  previously  empowered  by  an  act  to  draw  such  >unis. 

To  prexent  misap  :  lion  of  the  money,  or  even  applicaliou  that  might  be  dis- 
satisfactory to  the  cr  ..»  or  the  people,  it  was  thought  necasary.  to  join  the 
president-general  and  grand  council  in  all  issues  of  money. 


s-t.! 


i*     >■■■ 


n 


«#•> 


486      the  united  states:  a  stidy  is  international  organization 

Accounts 

That  the  general  accounts  shall  be  yearly  settled  and  reported  to  the  several 
Assemblies. 

fix  comiuuniidtinii  the  accounts  yearly  to  each  Assembly ,  they  mII  be  sar  ,■■1 
of  the  prudent  and  honest  conduct  of  their  representatives  in  the  grand  conn  7. 

Ql-ORLM 

That  a  quorum  of  the  Grand  Council,  empowered  to  act  with  the  President- 
Generr.l.  do  consist  of  twenty-five  members;  among  whom  there  shall  be  one  or 
more  from  a  n^ajority  of  the  colonics. 

The  quunim  seems  large,  but  it  zi'as  thought  it  would  not  be  satisfactory  to  the 
colonic f  in  general,  lo  lunc  matters  of  importance  to  the  Ji'/io/c  transacted  by  a 
smaller  number,  or  ncn  by  this  number  of  ficenty-firc.  unless  there  were  among 
them  one  at  least  from  a  majority  of  the  colonics;  because  other-cise.  the  v.'hole 
quorum  being  made  up  of  members  from  three  or  four  colonies  at  one  end  of  tile 
union,  something  might  be  done  that  -.i-ould  not  be  equal  -a-ith  respect  to  the  rest, 
and  thence  dissatisfaction  and  discords  might  rise  to  the  prejudice  of  the  U'lwle. 

Laws  to  be  Transmitted 

That  the  laws  made  by  them  for  the  purposes  aforesaid  shall  not  be  repugnant, 
bur.  as  near  as  may  be.  agreeable  to  tiie  laws  of  England,  and  shall  be  transmitted 
to  -ic  King  in  Council  for  ajiprobation.  as  soon  as  may  be  after  their  passing;  and 
if  not  disapproved  within  three  years  after  presentation,  to  remain  in  force. 

This  7cas  thougitt  necessary  for  the  satisfaction  of  the  cro'cn.  to  preserve  the 
connexion  of  the  parts  of  the  British  empire  '.Ath  the  echoic,  of  the  members  u-ith 
the  head,  and  to  induce  grculer  care  and  circumspection  in  miking  of  the  laii-s, 
that  they  be  ijood  in  themselves  and  for  the  general  benefit. 


Death  !)f  the  Pri.sident-General 

That,  in  case  of  the  dc,-:th  of  the  President-General,  the  Speaker  of  the  Grand 
Council  lor  the  time  being  -hall  succeeil.  and  be  vested  with  the  same  powers  and 
authorities,  to  continue  tiii  the  King's  pleasure  be  known. 

//  uiiiiht  be  better,  perluips,  as  zcas  said  before,  if  the  crozcn  appointed  a  vice- 
president,  to  tal:e  place  on  the  death  or  absence  of  the  president-general;  for  so 
'ikC  should  be  mioe  sure  of  a  suitable  person  at  the  head  of  the  colonies.  On  the 
death  or  absence  of  both,  the  speaker  to  take  place  lor  rather  the  eldest  King's 
governor  I  till  his  Majesty's  pleasure  be  knuzen. 

OrncrRs,  Huw  .AppniNTFn 

That  all  niili*  commis-^ion  (.fTicers.  whether  for  land  or  sea  service,  to  act 
under  this  gener  on>titiitinii,  >h:i!l  he  noniin.ated  by  the  President-General;  but 
the  approbation        the    "mnd  Council  is  to  be  obtained,  before  ihey  receive  their 


Ari'ENDIX 


487 


commissions.  And  all  civil  officers  arc  to  be  nominated  by  the  Grand  Council,  and 
to  receive  the  President-Clencral's  approbation  before  they  officiate. 

It  was  thought  it  might  he  7  cry  prcjtiduial  to  the  scnicc,  to  have  officers  ap- 
pointed unknorvn  to  the  people,  or  unacceptahle,  the  generality  of  Americans  serv- 
ing -a-illingly  under  otJicers  they  know:  and  not  caring  to  engage  in  the  service 
under  strangers,  or  such  as  are  often  appointed  by  governors  through  favour  or 
interest.  The  service  here  meant,  is  not  the  stated,  settled  serz'ice  in  standing 
troops:  but  any  sudden  and  short  service,  either  for  defence  of  our  colonies,  or 
inz'ading  the  enemy's  coinilry:  Isuch  as  the  e.vpedition  to  Cape  Breton  in  the 
last  war:  in  ti7iiV/i  many  substantial  farmers  and  tradesmen  engaged  as  common 
soldiers,  under  officers  of  their  own  country,  for  zchom  they  had  an  esteem  and 
affection;  who  iioiiW  not  have  engaged  in  a  standing  armv,  or  under  officers  from 
England.)  It  "was  therefore  thought  best  to  give  the  council  the  po-wer  of  ap- 
proving the  otlicers,  which  tlic  people  tciV/  look  upon  as  a  great  securitv  of  their 
being  good  men.  And  without  some  such  provision  as  this,  it  "was  thought  the 
e.rpense  of  engaging  men  in  the  scrz-icc  on  any  emergency  would  he  much  greater, 
and  the  number  'who  could  be  induced  to  engage  much  less:  and  that  therefore  it 
71'ould  he  most  for  the  king's  ser:-ice  and  general  benefit  of  the  nation,  that  the 
prerogative  should  rela.v  a  little  in  litis  particular  throughout  all  the  colonies  in 
America:  as  it  had  already  done  much  more  in  the  charters  of  some  particular 
colonies,  vi::.  Connecticut  and  Rhode  Island. 

The  civil  officers  Zi-ill  be  chietiv  treasurers  and  collectors  of  taxes;  and  the 
suitable  persons  are  most  likely  to  be  knozcn  by  the  council. 

\'ac.\\cies,.Ho\v  Srppi.iED 

Rut.  in  case  of  va.ancy  by  death  or  removal  of  any  officer  civil  or  military 
under  tliis  constitution,  the  ( lOvemor  of  the  province  in  which  such  vacancy 
hapi>ens  may  appoint,  till  the  pleasure  of  the  I 'resident-General  and  Grand  Coun- 
cil can  be  known. 

The  I'acancics  were  thought  best  supplied  by  the  governors  in  each  province, 
till  a  new  appointment  can  be  regularly  made:  otheneise  the  sen-ice  might  suffer 
before  the  meeting  of  the  president-general  and  grand  council. 


Ill 


Each  Colony  May  DRFExn  Ixsrr.F  ov  Emergency.  &c. 

That  the  particular  military  as  well  as  civil  establishments  in  each  colony 
remain  in  their  present  state,  the  jjeneral  constitution  notwithstanding;  and  tiiat 
on  sudden  emergencies  any  colony  may  defend  itself,  and  lay  the  accounts  of 
ex])ense  thence  arising  before  the  President-General  and  General  Council,  who 
may  allow  and  order  payment  of  tlie  same,  as  far  as  they  judge  such  accounts  just 
and  reasonable. 

(Ulierr^ise  the  union  of  the  -whole  'would  weaken  the  p^irts,  contrarv  to  the 
design  of  the  union.  The  accounts  are  to  he  judged  of  by  the  president-general 
and  grand  council,  and  allo'wcd  if  found  reasonable.     This  was  thought  necessary 


488  THE   UNITED  STATES:    A    STIOY    IN    INTERNATIONAL  ORGANIZATION 

to  cncouraar  colotiirs  to  defend  thcmsch-fs.  as  the  crfcnsc  vould  In-  lujltt  Zflint 
borne  b\  the  whole:  and  also  to  eheck  imfnident  and  laznsh  expense  in  sueh 
defenees} 


1^ 


IV.     BEXIAMIX  FRAXKI.IX'S  SKETCH  OF  ARTICLES  OF 
COXFEDERATIOX  ^ 

Read  before  Cons;ress  July  21,  1775. 

Articles   of   Confederation    and    Perpetial   Union,    Entred    in    by   the 

Delegates  of  tim:  Several  Colonies  of  Xew  Hampshire,  Etc., 

IN  General  Congress' 

Met  at  Philadelphia  May  10.  1775. 

ART.  I. 
The  Xame  of  this  Confederacy  shall  henceforth  be  The  United  Connies  of 
North  America. 

Mn  Carev's  American  SJuscum.  1789.  February  (pp.  190-194).  March  (pp.  285-288). 
April  (pp.  3(i5-.?68).  there  is  an  elaborate  article,  "  .■Mbaiiy  Plan  of  Union,"  at  the  conclusion 

of  which  appears  the  lollowinK:—  

••  Remark  February  9.  1789. 

•'(~)n  Reflection  it  now  seems  probable,  that  if  the  foreRoing  Plan  or  something  like  it  had 
been  adopted  and  carried  into  IC.xccntion.  the  subsenucnt  Separation  of  the  Colonies  from  the 
Mother  Country  might  not  >o  ^oon  have  happened,  nor  the  Mischiefs  suffered  on  both  sides 
have  occurred  peihaps  during  another  Century.  I'or  the  Coloniis,  if  so  united,  would  have 
really  been,  as  they  tlien  tho\ight  themselves,  sutiicient  to  tlieir  own  Defence,  and  being 
trusted  with  It.  as  by  the  Plan,  an  .Vrmy  from  Britain,  for  tliat  purpose  would  have  l>een 
luuHcessary ;  The  Pretences  for  framing  the  Stamp  .Kct  would  then  not  have  existed,  nor  the 
otiier  Pri'iccts  for  drawing  a  Revenue  from  .\merica  to  Britain  by  .\ct  of  F'arlianient.  which 
were  the  Cai~es  of  the  lireach  &  attended  with  such  terrible  K.xpense  of  T^lood  and  Treasure; 
so  that  the  different  Parts  of  the  iimpire  micht  still  have  rem.iined  in  Peace  and  L'tiion.  Hut 
the  late  of  this  Plan  was  singular.  I'or  then  after  many  Pays  thorough  Discussion  of  all 
its  I'.irts  in  (Tongress  it  was  unanimou'^lv  agreed  to.  and  Copies  ordered  to  be  sent  to  the 
A^'icmbly  of  each  Pro\ince  for  Concurrence,  and  one  to  the  Ministry  in  I'.ngland  for  the 
Approbation  of  the  Crown.  Tlie  Crown  disapproved  it.  as  having  placed  too  much  Weight 
in  the  Democratic  Part  oi  the  Constitution;  and  every  .Assembly  as  having  allowed  too  much 
to  Prerouative.     So  it  wt  totally  rejected."  ,  „  ,       .  ,  u 

The  abo\e.  as  printed  in  The  Musitim,  omits  the  word  "Remark,  but  bears  date  at  the 
bottom.  Philadelphia,  April  9,  1789.  It  was  written  by  Dr.  Franklin  and  accompanied  the 
folli>wing  letter :  — 

"  Sir 

•  I  ili.ink  vo>i  for  the  Opportunitv  you  propose  to  give  me  of  making  .Alterations  m  those 
old  Pieces  of' mine  which  vou  intend  to  republish  in  your  U».t,-ii»i.  I  have  no  Inclination  to 
make  uiv  Changes  in  tliein  but  should  like  to  see  the  Proof  Sheet,  supimsing  your  (.'opies 
may  po-Mbly  be  incorrect  —  .\nd  if  yoi  have  no  Objection,  you  may  follow  the  .\lbany  Plan 
with  the  enclosed  Kentii'k  but  not  as  from  me. 

"  I  am.  Sir 

"  Your  humble  Servant. 

(Signed)     "  B.  Franklin." 

.Addressed  on  the  back  :  — 

"  Mr.  Mathew  Carey 

"  Printer  of  the  Museum." 
The  originals  of  the  above  papers,  in  the  handwriting  of  Dr.  IVankbn.  are  in  my  possession. 

IIknrv  Carkv  Hmiui. 
Pnii.MiKi  ri?i\.  — Fn. 

-Reprinted  from  Allert  Henrv  Smvth,  7/u-  IVritinns  oj  Benjamin  Franklin  (New  \ork. 
The  Ma.mill.in  Co  ).  Vol.  vi.  pp.  42fM26  ,      ,     „ 

^  A  contemporary  copy  exists  among  the  papers  of  the  Continental  Congress   (vol.   47, 


AIM'ENDIX 


489 


ART.  II. 

The  said  Un.  -d  Colonies  hereby  severally  enter  into  a  firm  Leapue  of  Friend- 
ship with  each  other,  binding  [nn|  themselves  and  their  Posterity,  for  [their 
common  I  Defence  against  their  F.nemies,  for  the  Security  of  their  Liberties  and 
Properties,  the  Safety  of  their  Persons  and  Families,  and  their  mutual  and  gen- 
eral Welfare. 

ART.  III. 

That  each  Colony  shall  enjoy  and  retain  as  much  as  it  m,ny  think  fit  of  its 
own  present  Laws,  Customs,  Rights,  Privileges,  and  peculiar  jurisdictions  within 
its  own  Limits:  and  may  amend  its  own  Constitution,  as  shall  seem  best  to  its 
own  Assembly  or  Convention. 

ART.  IV. 

That  for  the  more  convenient  Management  of  general  Interests,  Delegates 
shall  be  annually  elected  in  each  Colony,  to  meet  in  Ciencral  Congress  at  such 
Time  and  Place  as  shall  be  .igreed  on  in  the  next  preceding  Congress.  Only, 
where  particular  Circumstances  do  not  make  a  Duration  necessary,  it  is  understood 
to  be  a  Rule,  that  each  succeeding  Congress  be  held  in  a  ditTerent  Colony,  till  the 
whole  Number  Ix'  gone  through:  and  st  i  per])etu;d  Rotation;  and  that  accord- 
ingly the  ne.vt  [Congress |  after  the  present  shall  be  held  at  Annapolis,  in  Maryland. 


ART.  V. 

That  the  Power  and  Duty  of  the  Congress  shall  extend  to  the  Determining  on 
War  and  Peace:  the  entring  into  .\lliaiices,  [sending  and  receiving  ambassadors] 
(the  recnncilia'.io..  with  Oreat  I'.ritain)  :  the  settling  all  Disputes  .and  DiiTerences 
between  Coloi.,  and  Colony,  [about  Limits  or  any  other  cause,)  if  such  should 
arise:  and  the  Planting  of  new  Colonies:  when  proper.  The  v^ongrcss  shall  also 
make  such  general  [ordinances]  as.  tho'  necessary  to  the  C.eneral  Welfare,  par- 
ticular .Xssemblies  cannot  be  competent  to,  viz.  (tlio^c  that  may  relate  to  our 
general]  Commerce,  or  general  Ctirrency ;  the  establishment  of  Posts;  [and]  the 
Regidation  of  [our  common]  I'orces.  The  Congress  shall  also  have  the  appoint- 
ment of  all  (leneral  Officers,  civil  and  military,  appertaining  to  the  general  Con- 
federacv,  such  as  General  Treasurer,  Secretary,  &c. 


ART.  VI. 

All  Charges  of  Wars,  and  all  other  general  Expences  [to  be]  incurr'd  for 
the  common  Welfare,  shall  be  defray 'd  out  of  a  common  Treasury,  wbicl-.  is  to 
be  supply'd  by  each  Colony  in  proportion  to  its  Xum'ier  of  Male  Polls  between 
16  and  cio  Years  of  Age;  the  Taxes  for  paying  that  I'roportion  [are]  to  be  laid 
?->d  levied  by  [the]  Laws  of  each  Colony. 

iolio>i  17).  I..  C.    Tt  is  endnrsed  by  '^'ranklin :     "Sketch  of  Articles  nf  Omfederation."  and, 
in  a  dilferiMit  li.md.  "  Rf.id  before  Co.  ;ress  Jidy  21.  1775."— .Siii>tli'-  iictt 


vA 


m 


1 1 


4yU  THE   UNITED  STA 


STIDY    IN    INTERNATIONAL  ORGANIZATION 
ART.    VII. 


^'*- 


The  Xumber  o{  Delegates  to  be  elected  and  sent  to  the  Congress  by  each 
Colony  shall  be  regulated,  from  time  to  time,  by  the  Number  of  [such]  Polls 
return'd:  so  as  that  one  HelcRato  be  allowed  for  every  5000  Polls.  .-Vnd  the 
Delegates  arc  to  bring  with  them  to  every  Congress  an  authenticated  return  of 

.  triennially 

the  number  of  Polls  in  their  respective  Provinces,  [which  is)  to  be      ^^^^^^Hy 

taken  for  the  Purposes  above  mentioned. 

ART.  VIII. 

At  every  Meeting  of  the  Congress,  one  half  of  the  Members  return'd,  exclu- 
sive of  Proxies,  be  necessary  to  make  a  Quorum:  and  each  Delegate  at  the  Con- 
gress shall  have  a  \ote  in  all  Cases,  and,  if  necessarily  absent,  shall  be  allow'd  to 
arpoint  [.my  other  Delegate  from  the  same  Colony  to  be  his]  Proxy,  who  may 
vote  for  him. 

ART.  IX. 

An  executive  Council  shall  be  appointed  by  the  Congress  [out  of  their  own 
Body.]  consisting  of  12  Persons;  of  whom,  in  the  first  appointment,  [one  third, 
viz.]  ( four,)  shall  he  for  one  Year,  (fonri  for  two  Years,  and  (four)  for  three 
Years;  and  as  the  said  terms  expire,  the  X'acancies  shall  lie  filled  by  appointments 
for  three  ^'ears ;  whereby  one  Third  of  the  Members  will  be  changed  annually. 
And  each  Person  who  has  served  the  said  Term  [of  three  Years]  as  Counsellor, 
shall  have  a  Resi>ite  of  three  Years,  before  he  can  be  elected  again.  This  Council, 
[of  whom  two  thirds  shall  be  a  Quorum]  in  the  Recess  of  Congress,  is  to  execute 
what  shall  have  been  enjoin'd  thereby;  [to]  m.anage  the  general  [Continental] 
Business  and  Interests:  to  receive  applications  from  foreign  Countries;  [to] 
prepare  Matters  for  the  Consideration  of  the  Congress;  to  till  up.  [fro  tempore] 
[continental]  offices,  that  fall  vacant;  and  to  draw  on  the  General  Treasurer  for 
such  Monies  as  may  be  necessary  for  general  Services,  and  appropriated  by  the 
Congress  to  such  Services. 

ART.  X. 

No  Colony  sh.all  engage  in  an  offensive  War  with  any  Nation  of  Indians  with- 
oui  M-  Conx-nt  of  the  Congress,  or  great  Council  alwve  mentioned,  who  are  first 
to  consider  the  Justice  and  Necessity  of  such  War. 

ART.  XI. 

A  perpetual  Alliance,  offensive  and  defensive,  is  to  be  entred  into  as  soon  as 
may  be  with  the  Six  Nations;  their  Limits  to  be  ascertain'd  and  secur'd  to  them; 
their  Land  not  to  be  encroach'd  on,  nor  any  private  [or  Colony)  Purchases  made 
of  them  hereafter  to  be  hehl  good;  nor  any  [Contract  for  Lands]  to  be  made,  but 
between  the  Great  Council  [of  the  Indians]  at  Onondaga  and  the  General  Con- 


APPENDIX 


491 


^'ress.  The  Boundaries  and  Lands  of  all  the  other  Indians  shall  also  be  [ascer- 
uin'd  and]  secur'd  to  them  (in  the  same  manner,]  and  Persons  appointed  to 
reside  among  them  in  proper  Districts:  who  shall  take  care  to  prevent  Injustice 
in  the  Trade  with  them;  [and  be  enabled  at  our  general  Expence.]  by  occasional 
small  supplies,  to  relieve  their  personal  Wants  and  Distresses.  And  all  Purchases 
from  them  shall  be  by  the  Congress,  for  the  General  Advantage  and  Benefit  of 
the  United  Colonies. 

ART.  XII. 

As  all  new  Institutions  may  have  Imperfections,  which  only  Time  and  Ex- 
perience can  discover,  it  is  agreed,  that  the  tleneral  Congress,  from  time  [to  time,] 
shall  propose  sucii  amendments  of  the  Constitution  as  may  be  found  necessary; 
which,  being  approv'd  l)y  a  Majority  of  the  Colony  Assemblies,  shall  be  equally 
binding  with  the  rest  of  the  Articles  of  this  Confederation. 

ART.  XIII. 

•Any  and  cvcrv  Colony  from  Great  Britain  [upon  the  continent  of  North 
.Xnierica.)  not  at  present  engag'd  in  our  Association,  may,  upon  application  [and 
joining  the  said  Association,]  be  receiv'd  into  tile  Confederation,  viz.  [Ireland,] 
the  West  India  Islands,  Quebec,  St.  John's,  N'ova  Scotia,  Bermudas,  and  the  East 
and  West  Horidas :  and  shall  |thereui)onl  be  entitled  to  all  the  advantages  of  our 
I'liion,  mutual  .Assistance,  and  Commerce. 

These  .Articles  shall  be  i)ropos'd  to  the  several  Provincial  Conventions  or 
Assemblies,  to  be  bv  tlicm  consider'd ;  and  if  approved,  they  arc  advis'd  to  im- 
power  their  Delegates  to  agree  to  and  ratify  the  same  in  the  ensuing  Congress. 
After  which  the  Union  thereby  cst.ablish'd  is  to  continue  firm,  till  the  Terms  of 
Reconciliation  proposed  in  the  Petition  of  the  last  Congress  to  the  King  are 
agreed  to:  till  the  .Acts  since  made,  restraining  the  .American  Commerce  [and 
Eisheries.l  are  repeal'd :  till  Reparation  is  made  for  the  Injury  done  to  I'.oston, 
by  shutting  up  its  Port,  for  the  Burning  of  Charlestown,  and  for  the  Expence  of 
this  unjust  War:  and  till  all  the  British  Troops  are  withdrawn  from  .America. 
On  the  Arrival  of  the^e  Events,  the  Colonies  return  to  their  former  Connection 
and  Friendship  with  Britain:  I'>ut  on  Failure  thereof,  this  Confedeiation  is  to 
be  perjjetual. 

Read  Before  Congress  July  21,  1775 

Jl'hercas.^     It  hath  pleased  God  to  bless  these  countries  with  a  most  plentiful 

»Tlie  Ri-«)lntions  which  f.jllow  wore  printed  !>>•  Mr.  Bi^;t;!.>w  ("  Tlie  Complete  Works  of 
Beiijaniin  rrankliii,"  Vol.  \'.  p  5,=^4l  from  tht  orit;imiI  M«.  in  1).  S.  \V.  Tlie;  had  'heen  earlier 
prmted  in  ilie  .\rcliive<i  of  .New  Jersey.  \'ol.  X.  p.  ifl\.  The  use  of  brackets,  etc.,  in  the  fol- 
lowinK  text  is  this  explained  bv  Mr.  Worthinston  C.  lord.  "  .Xs  I  liinl  -oine  dittereiues 
between  the  .irticles  as  printed  in  the  New  Jersey  .Archives.  I  have  tnkcn  the  oriuniiil  ..n  the 
enclosed  sheets,  Kivin.i?  the  parts  erased,  and  aKo  clistinK'nishinR  the  c.irets  ■>r  interlinear 
words  thus  I]  The  'free-trade'  re  oliition.s  wore  hrouKht  in  on  the  same  d.iy  as  the  nrtieles. 
are  written  on  the  same  paper,  and  all  in  B.  F.'s  Ms.  I  am  quite  sure  they  oruinally  fornic>l 
a  part  of  the  articles  (althoiiRh  not  niimhered  and  placed  in  a  dilierent  vohime  in  the  records 
of  the  Continental  Consress).  They  were  even  endorsed  '.Articles  of  Confederation,  though 
a  pen  was  afterwards  run  through  the  endorsement."— Smyth's  note. 


m 


I  i, 


«^;. 


492  THE   UNITED  STATES:   A   STCDY   IN    INTERNATIONAL  ORGANIZATION 

hancst.  whereby  much  corn  and  other  provisions  can  be  spared  to  foreign  nations 
who  may  want  the  same.  Resolved,  That  [after  the  expiration  of  Six  Months] 
from  (and  aflrrV  the  |20th  of  July  Instant,]  (beini)  one  full  year  afterY  (»)eingl 
the  Oav  appointed  by  a  late  Act  of  the  Parliament  of  Great  Britain,  for  restrain- 
ing the  Trade  of  the  Confederate  Colonies,  all  Custom-Houses  [therein]  (if  the 
Act  he  not  first  rescinded)  shall  be  shut  up.  and  all  officers  of  the  same  discharged 
from  the  Execution  of  their  several  Functions,  and  all  the  Ports  of  the  said  Col- 
onics are  hereby  declared  to  he  thenceforth  open  to  the  Ships  of  evci^  State  in 
Eurojie  that  will  admit  of  our  Commerce  and  protect  it ;  who  may  [torn  off]  and 
expose  to  sale  free  of  all  Duties  their  respective  Produce  and  Manufactures,  and 
evcrv  kind  of  Merchandize,  excepting  Teas,  and  the  Merchandize  of  Great  Brit- 
ain. Ireland,  and  the  r>ritish  West  India  Islands. 

Rcsohed,  That  we  will  to  the  utmost  of  our  Power,  maintain  and  support  this 
Freedom  of  Commerce  for  [two]  years  certain  after  its  Commencement,  any 
reconciliation  between  us  and  Britain  notwithstanding;  and  as  much  longer  be- 
yond that  term,  as  the  late  .\cts  of  Parliament  for  restoring  the  Restraining  the 
Commerce  and  fisheries,  and  altering  the  Laws  and  Charters  of  any  of  the  Colo- 
nies, shall  continue  unrepealed. 

ENDORSEn— No.  2.  (Articles  of  Confederation)  A  proposal  for  opening 
the  jKirts  of  X.  A.  bro'  in  by  committee  —  read  July  21,  1775  —  on  notion  post- 
poned for  future  consideration. 


'f^ 


V.    THE  DECLARATION  OF  INDEPENDENCE,  JUI  Y  4,  1776.' 
The  unanimous  Declaration  of  the  thirteen  united  States  of  America. 

When  in  the  Course  of  human  events,  it  becomes  necessary  for  one  people  to 
dissolve  the  political  bands  which  have  connected  them  with  another,  and  to  as- 
sume among  the  Powers  of  the  earth,  the  separate  and  equal  station  to  which  the 
Laws  of  Nature  and  of  Nature's  God  entitle  them,  a  decent  respect  to  the  opin- 
ions of  mankind  requires  that  they  should  declare  the  causes  which  impel  them 
to  the  separation. 

\\  e  hold  these  truths  to  be  self-evident,  that  all  men  are  created  equal,  that 
they  :ire  endowed  by  tlieir  Creator  with  certain  unalienable  Rights,  that  among 
these  are  Life.  Liberty  and  the  pursuit  of  Happiness.  That  to  secure  these 
rights.  (Governments  are  instituted  among  Men,  deriving  their  just  powers  from 
the  consent  of  the  governed.  That  whenever  any  Form  of  Government  becomes 
destructive  of  these  ends,  it  is  the  Right  of  the  People  to  alter  or  to  abolish  it, 
and  to  instituce  new  Goveniment,  laying  its  foundation  on  such  principles  and 
organizing  its  powers  in  such  form,  as  to  them  shall  seem  most  likely  to  eilfect 
their  Safety  and  Happiness.  .  .  . 

We,  therefore,  the  Representatives  of  the  united  States  of  America,  in  General 
Congress,  Assembled,  appealing  to  the  Supreme  Judge  of  the  world  for  the  recti- 

'  The  word~  in  italic*  show  the  erasures  in  the  original  Ml. 
-Rckiscii  Stiiutcs  of  the  United  States,  1873,  pp.  3-6. 


APPENDIX 


493 


tude  of  our  intentions,  do,  in  the  Name,  and  by  Authority  of  the  good  People  of 
these  Colonies,  solemnly  puhli^l.  an.l  declare.  That  these  United  Colonies  are.  and 
of  Right  ouRht  to  be  Free  an.!  IndeiK-ndenl  States :  that  they  are  Absolved  from 
all  AlleRiance  to  the  liritish  Crown,  and  that  all  iK)litiial  connection  between  tlieni 
and  the  State  of  Great  i'.rilain,  is  and  ought  to  l)e  totally  dissolved ;  and  that  as 
Free  and  IndetKJndent  States,  they  have  full  Power  to  levy  War.  conclude  Peace, 
contract  Alliances,  establish  Commerce,  and  to  do  all  other  Acts  and  Thmgs 
which  Independent  States  may  of  right  do.  And  for  the  sui.port  of  this  Declara- 
tion, with  a  firm  reliance  on  the  Protection  of  Divine  I'rovidence,  we  mutual.y 
pledge  to  each  other  our  Lives,  our  Fortunes  and  our  sacred  Honor. 

JOHN  HANCOCK. 
New  Hampshire 

JiiSI.MI    I'l.VRTLETT 

VVm.  Wiin-rLE 

M.XTTUEW  TllORXTON 

Massachusetts  Bay 

S.sML.  Adams 

John  Ad.vm.s 

Ronr.  Treat  Paine 

Elbhidce  Gerry 
Rhode  Island 

Step.  Hopkins 

William  Ellery 
Connecticut 

RoCER  Sherm.vn 

Sam'el  Hintington 

W.M.  Willi  A. MS 

Oliver  Wolcott 
New  York 

Wm.  Fi^vd 

Phil.  Livingston 

Frans.  Lewis 

Lewis  Morris 
Neti'  Icrsey 

Riciid.  Stockton 

Jno.  Withkrsp(h)N 

Fr.VS.    Flol'KlNSUN 

John  Hart 
Aura.  Clark 
Pennsylvania 

RoBT.  Morris 
Benjamin  Risii 
Ben  J  A.  Franklin 
John  Morton 


1^1 


494  THE   UNITED  STATES:   A   STUDY    IN    INTERNATIONAL  ORGANIZATION 


m^,. 


Gei).  Clvmer 
J  AS.  Smith 
G»  ».  Taylor 
James  Wii-son 
CiEd.  Ross 

Caksar  Rodney 
Ci.o.  Ufad 
Tnn.  M'Kean 
Maryhind 

Samiei.  Chase 
\Vm.  Taca 
Tiios.  Stcnk 

Chari.es  Carroll  of  Carrollton 
I'trijiiihi 

CiKliKI.E  WVTHE 

Richard  Hksky  Lee 
Th.  Jkkkkkson 
I'enja.  Harrison 
Twos.  Nei.son,  Jr. 
Francis  Lu;iitkk)t  Lee 

Cartkr    r.RA.\TON 
North  Carolina 

Wm.    Ifool'ER 
Jo^KI'll  Hewes 
jciHN    I'ENN 

South  Carolina 

I'.DWARI)    RlTLEDGE 

Tiios.  Hevwarh,  Junr. 
Thomas  Lynch,  Junr. 
.Arthlr  Middleton 
Georijia 

IUtton  Gwinnett 
Lyman  Hall 
Geo.  Walton 


VI     ARTICLES    OF    COXFEDER.XTIOX    ADOPTED    BY    CONGRESS. 
NUN  E.NUiER  15,  1777.  RATH-TED  BY  THE  L.\ST  Ul-    IHL   IHIR- 
TEEN  STATES,  MARCH  1,  1781.' 
To  all  to  whom  these  Presents  shall  eon,c.  t.r  the  r,ule,signed  Delegates  of  the 
States  atJlved  In  -.nir  Xames  send  (jreeting. 

Whereas  the  Delegates  of  the  Cite.!  S.  ...  s  of  Ar.ierica  in  ^.or.i^e.ss  assembled 
Hid  on  the  fifteenth  day  of  November  in  the  Year  of  our  Lord  One   I  nousand 
1  Revised  Statutes  of  tho  L'niteJ  States,  1»78.  pp.  7-12. 


APPENDIX 


495 


Seven  Hundred  and  Seventysevcn,  and  in  the  Second  Year  of  the  Independence 
i(f  America  aijree  to  certain  articles  of  confederation  and  perpetual  L'nion  !)e- 
tween  the  States  of  N'ewhatnp>liirc,  Massaduisctt  -bay,  Rhodei»lani|  and  I'rovi- 
dence  Plantations,  t'onnecticut.  New  York,  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland.  \'ir<;inia,  North-Carolina,  South-Carolina  and  Georgia  in  the 
W'ords  followin".  viz. 


"  Articles  of  Confcdiration  and  perpetual  Union  hcti<.rcn  the  States  of  Nezv- 
hampsliire,  Massaeliiisett.s-ba\.  Rhodcisland  and  Protuicnee  Plantations, 
Ciinnecliciit.  Ai'Ti'-icrA',  .\e-iC-Jer.<e\,  rennsylivnia.  Delaware,  Maryland, 
I'irgtnia,  .\orlli-(.  arolina,  South-Carolina  and  deortjia. 

ARTiri.r.  I.  The  stile  of  this  confederacy  shall  be  "  The  United  States  of 
America." 

Aktici.f.  II.  Each  State  retains  its  sovereignty,  freedom  an<l  independence, 
and  everv  jMnver,  jurisdiction  and  right,  which  is  not  by  this  confederation  ex- 
I)ressly  delegated  to  the  Lnited  States,  in  Congress  assembled. 

.\ktici.e  hi.  The  said  States  hereby  severally  enter  into  a  tirm  league  of 
friendship  with  each  other,  for  their  common  defence,  the  security  of  their  lib- 
erties, and  their  nnitu.d  and  general  wel.are.  binding  themselves  to  assist  each 
other,  .ngainst  all  force  otTered  to.  or  .ittacks  ni.-ide  ui'oii  them,  or  any  of  them, 
on  account  of  religion,  sovereignty,  trade,  or  any  other  |)retence  whatever. 

.•\rtici.f.  IV,  The  better  to  secure  .ind  perpetuate  mutual  friendship  and  in- 
tercourse among  the  pe<iple  of  the  ditTerent  States  in  this  Cnion.  the  free  inhabi- 
tants of  each  of  these  States,  paupers,  vagabonds  an.l  fugitives  froui  justice  ex- 
cepted, shall  be  entitled  to  all  privileges  and  immunities  of  free  citizens  in  the 
several  States;  and  the  people  of  e.u'h  State  >hall  have  free  ingress  and  regress 
to  and  from  any  other  State,  and  shall  enjoy  therein  all  the  privileges  of  trade 
and  commerce,  subject  to  the  .same  duties,  impositions  .and  restrictions  as  the 
inhabitants  thereof  resiiectively.  provided  that  such  restrictions  shall  not  extend 
so  far  as  to  prevent  the  removal  of  property  imported  into  any  State,  to  any 
other  State  of  which  the  owner  is  an  inhabitant :  provided  also  that  no  imposi- 
tion, duties  or  restriction  shall  be  laid  by  any  State,  on  the  property  of  the 
United  States,  or  either  of  them. 

If  any  person  guilty  of.  or  charged  with  treason,  felony,  or  other  high  misde- 
meanor in  any  State,  ihall  llee  from  justice,  and  be  found  in  any  of  the  United 
States,  he  shall  upon  demand  of  the  Crovernor  or  F.xecutive  power,  of  the  State 
from  which  he  tUd.  be  delivered  up  and  removeil  to  the  State  having  jurisdiction 

of  his  olTence. 

Full  faith  and  credit  shall  be  given  in  e.ich  of  these  States  to  the  recor.ls.  acts 
and  judicial  proceedings  of  the  courts  and  magistrates  of  ever\-  other  St.ite. 

Artici.k  V.  l"or  the  mure  convenient  m;\nagement  of  the  general  interest  of 
the  United  States,  delegates  shall  be  annually  appointed  in  such  maimer  as  the 
legislature  of  each  State  shall  direct,  to  meet  in  Congress  on  the  first  Monday  in 
November,  in  every  year,  with  a  power  reserved  to  each  State,  to  recall  its  dele- 


B 


m 


i 


*»i.. 


496  THE   UNITED  STATF.S  I    A   STUDY   IN    INTERNATIONAL  OBGANIZATION 

gates  or  any  of  them,  at  any  time  within  the  year,  ami  to  send  others  in  their 
stead,  for  the  remainder  of  the  year. 

No  '^tatc  .hail  be  repres-ntcd  in  Congress  l)y  less  than  two.  nor  by  more  th.in 
seven  memlK-rs :  and  no  jK-rson  shall  W  capable  of  bi-ing  a  deleRate  for  more 
than  three  vears  in  anv  temi  of  six  years ;  nor  shall  any  jHrrson,  l)cing  a  delegate, 
b-  cai>able  of  holding  anv  office  under  the  Inited  States,  for  which  he.  or  another 
for     .s  iKMiefit  receives  any  salary,  fees  or  emolument  of  any  ^ind. 

I'.ach  State  shall  maintain  its  own  delegates  in  a  meetiii;.  of  the  States,  and 
while  they  act  as  members  of  the  committee  of  the  States. 

In  deurmining  questions  in  the  United  Stales,  in  Congress  assembled,  each 

State  shall  have  one  vote. 

I-reedom  of  speech  and  debate  in  Congress  shall  not  l>e  impeached  or  questioned 
in  anv  court,  or  place  out  of  Congress,  an.l  the  members  of  Congress  shall  be 
protected  in  their  persons  from  arrests  aiul  imi.risonments.  during  the  time  of 
their  going  to  and  from,  and  attencKmce  on  Congress,  except  for  treason,  felony, 
or  breach  of  tlie  peace. 

Aktri.K  \  1.  No  State  without  the  consent  of  the  I'nited  States  in  Congress 
assembled,  shall  send  any  embassy  to.  or  receive  any  embassy  from,  or  enter  into 
any  conference,  agreement,  alliance  or  treaty  with  any  king  prince  or  stale;  nor 
shall  anv  per-on  holding  any  ottice  of  profit  or  trust  under  the  I'nited  Slates,  or 
any  of  I'hem.  accept  of  any  present,  emolument,  office  or  title  of  any  kind  whatever 
from  any  king,  prince  or  foreign  state:  nor  shall  the  United  States  in  Congress 
assembled,  or  anv  of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation  or  alliance 
whatever  between  them,  without  the  consent  of  the  United  States  in  Congress 
assembled.  si)ecifying  accurately  the  purposes  for  which  the  same  is  to  be  en- 
tered into,  and  how  long  it  shall  continue. 

No  State  shall  lay  anv  imposts  or  duties,  which  may  interfere  with  any  stipu- 
lations in  treaties,  entered  into  by  the  L'nited  States  in  Congress  assembled,  with 
any  king,  prince  or  state,  in  pursuance  of  any  treaties  already  i)roposed  by  Con- 
gress, to  the  courts  of  I'rancc  and  Spain. 

No  vessels  of  war  shall  he  kept  up  in  time  of  i)cace  by  any  State,  except  such 
number  onlv.  as  shall  be  deemed  necessary  by  the  United  States  in  Congress  as- 
sembled, for  the  defence  of  such  State,  or  its  trade ;  nor  shall  any  body  of  forces 
be  kept  up  bv  anv  State,  in  time  of  peace,  except  such  number  only,  as  in  the 
judgiuent  of  the  I'nited  States,  in  Congress  assembled,  shall  l)e  deemed  requisite 
to  garrison  the  forts  necessary  for  the  defence  of  such  State :  but  every  State 
shall  always  keep  up  a  well  regulated  and  disciplined  militia,  sufficiently  armed 
and  accoutered,  and  shall  provide  and  constantly  have  ready  for  use,  in  public 
stores,  a  due  numlK-r  of  fa-M  pieces  and  tents,  and  a  proper  quantity  of  arms, 
ammunition  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the  United  States  in 
Congress  assembled,  unless  such  State  be  actually  invaded  by  enemies,  or  shall 
have  received  certain  advice  of  a  resolution  being  formed  by  some  nation  of 


APPENDIX 


497 


Indians  to  invade  such  Statt,  and  tlic  danger  is  so  imminent  as  not  to  admit  of  a 
delay,  till  the  United  States  in  Congress  assembled  can  he  consulted:  nor  shall 
any  State  grant  commissions  to  any  ships  or  vessels  of  war,  nor  Inters  of  nianjuc 
or  re|)  sal,  except  it  l)e  after  a  declaration  of  war  hy  tlie  United  States  in  Con- 
gress assembled,  and  then  only  against  the  kinpdoni  or  statp  and  the  subjects 
thereof,  apaiiist  which  war  h.is  been  so  declared,  and  un.ler  such  regulations  as 
shall  lie  established  by  the  United  States  in  Congress  asscmliled,  unless  such 
State  be  infested  by  pirates,  in  which  case  vessels  of  w;ir  may  be  fitted  out  for 
that  occasion,  and  kept  so  long  as  the  d.mger  shall  coiuitiue,  or  until  the  United 
States  in  Congress  assetnbled  shall  determine  otherwise. 

AuTiii.K  \  II,  W  hen  land-forces  arc  raised  by  any  State  for  the  common  de- 
fence, all  officers  of  or  under  the  rank  of  colonel,  shall  \k-  afijOTinted  by  the  Legis- 
lature of  each  State  res|)ectivcly  by  whom  such  forces  shall  be  raided,  or  in  such 
manner  as  such  State  shall  direct,  and  all  vacancies  shall  be  fdled  up  by  the  State 
which  first  made  the  apixjintment. 

Article  VIII.  All  charges  of  war,  and  all  other  cxi,enses  that  shall  be  in- 
curred fur  the  common  defence  or  general  welfare,  and  alloweil  by  the  United 
States  in  Congress  assembled,  shall  be  defrayed  out  of  a  common  treasury,  which 
shall  l)e  supplied  by  the  several  States,  in  proportion  to  the  value  of  all  land 
within  each  State,  granted  to  or  surveyed  for  any  person,  as  such  land  and  the 
buildings  and  inii)rovements  thereon  shall  be  estimated  according  to  such  mode 
as  the  United  States  in  Congress  assembled,  shall  from  time  to  time  direct  and 
appoint. 

Tlic  taxes  for  paying  that  proportion  shall  be  laid  and  levied  by  the  authority 
and  direction  of  the  Legislatures  of  the  .several  States  within  the  time  agreed  upon 
by  the  L'nited  States  in  Congress  assembled. 

Article  IX.  The  Uflited  States  in  Congress  as.scmbled,  shall  have  the  sole 
and  exclusive  right  and  power  of  determining  on  peace  and  war,  except  in  the 
cas,-s  mentioned  in  the  sixth  article  — of  sending  and  receiving  ambassadors  — 
entering  into  treaties  and  alliances,  provided  that  no  treaty  of  commerce  shall  be 
made  whereby  the  legislative  power  of  the  resi>ective  States  shall  l)e  restrained 
from  imposing  such  imiwsts  and  duties  on  foreigners,  as  their  own  people  are 
subjected  to,  or  from  prohibiting  the  exportation  or  importation  of  any  species 
of  goods  or  commodities  whatsoever  —  of  establishing  rules  for  deciding  in  all 
cases,  what  captures  on  land  or  water  shall  be  legal,  and  in  what  manner  prizes 
taken  by  land  or  naval  forces  in  the  service  of  the  United  States  shall  be  divided 
or  appropriated  —  of  granting  letters  of  niar(|ue  and  reprisal  in  times  of  peace  — 
appointing  courts  for  the  trial  of  piracies  and  felonies  committed  en  the  high 
seas  and  establishing  courts  for  receiving  and  determining  finally  appeals  in  all 
cases  of  captures,  provided  that  no  memtier  of  Congress  shall  be  appointed  a 
judge  of  any  of  the  said  courts. 

The  l'nited  States  in  Congress  assembled  shall  also  be  the  last  resort  on  appeal 
in  all  disputes  and  differences  now  subsisting  or  that  hereafter  may  arise  between 
two  or  more  States  concerning  boundary,  jurisdiction  or  any  other  cause  what- 


ft-..' 


^. 


4.^8  THE    IN.TE»  STATFS:    A   STl  UV    IN    .NTKHNAT.nN  V..  .>RC.ANUAT>OS 

hit,  anihoritv  .hall  alwav.  In;  exercised  in  the  manner  followinR.  When- 
ever: -»';'' f?''^i;'y;-;,,,uve'  au,lu.ri.v  or  lawful  aR.nt  of  any  Sta.e  .n  con- 
cver  the  URt;!--"'^ ^  "^  ^.  1  Isent  a  iKtiti.m  to  ConRre..,  MatinR  the  matter  .n 
„oversy  wuh  another  ff^^^'  ^^^  ,,^^^„,  I,,,  ,,.  ,,,,„  ,.y  order  of 
,ueMn,n  an<    pra..n«    or      ^^;J]^  .,,  ,„,  ,,„.,  state  in  controversy. 

ConRress  to  the  URisiaiiNe' r  I  .,.,,,;,..  i,v  their  lawfi    agents,  who 

shall  then  '^  '  -J  ;;  ;'^;;;'        ZL..l.,  ,1.  neuter  in  ..ncstion:  hut  if  they 
constm-te  a  court  for  '"""«»  „„,  „f  ,„,,,  „(  „,e  I'nited  Mat.-, 

can  not  aeree.  I  oncre.s  shall  name  <""'  P'  .,Uernatclv  >^trike  cut  on.-,  the 

and  frotn  the  list  ...   M.ch  persons  each  P'^', -J';'"  *^    /J  ,,„-,,„,,,,„ .  „,„,   fn.n. 
,H.tition.-rs  l,c«uunn,,  until  the  nu.nl.er  ^"='"  '^;^''^';;\';  '"VonRress  shall 

r  r'tfirihe;;::;:^  o";:r.:rhrh:and  i  .r,ons 
ts  ;ai;;::",;:^  c:,  drawn ..  any  hve  of  them,  ;;;^>- -:;—;::; 

,.aRes.  to  hear  and  J";^'-;;'-^-^-;   ^^r  „  ^ 'rer.!:... '  a.^l  -f 

:^,;::;:  r;:r;;e  i"  ;:;:t;^ir;;  .lav  a,;.inted,  ;------- 

which VonRress  shall  judRc  sut^cient.  or  he.uR  l«r-en  .ha  1  ;  -  '  ;'",^J,  ,,^ 
ConRress  .hall  proceed  to  nominate  »^-  IT  ch  a  K  ^-^  -  refusi.  . : 
Secretary  of  ConRre.  ^f' ^'^^^  :^ltZX^^  ^^^  ^^^^  ^-  ""  ^^^^^ 
and  the  ju.lRment  and  sentence  "^  Z''^^;  "  "  '\„  .',,(  „,,  ,„,tu.s  ^h.ll  refuse  to 
prescrihe.l.  shall  he  final  and  condusue  .  and    f  ,  n>    >   J  ^^^ 

;uhn,it  to  ,hc  authority  of  such  court,  or  to  ^>1'1-  "-'  J^  j'  ^^  „,lR„,ent,  winch 
the  court  shall  nevertheless  proceed  'rP-';"";::;"'^;  „;':,,,,:,,  .„,  .,t„er 
shall  .n  like  manner  he  t^nal  and  decMve.    he    u         .  t  or    <  ^^^^ 

..roceediuRs  heiuR  in  either  case  transmmd  o  .  '^J^^riuM  that  ^ery 
Lts  of  ConRress  for  the  .ecunty  of  .he  pa  tc  ^'.^tjl  be  adnunistered 
conmnissu.ner,  hefure  he  s,ts  m  jud.nnent,  >hal    rAe  an  o.i     t  ^^^^^^^  ^^^^ 

by  one  of  the  JudRcs  of  the  J';);;;;'; --';;,,;:  L -.^^n.tter  u,  ..uest.on. 
cause  slulllKMraH.-'wel=u.ltnltha^,.^^  ^^^^^^^^^^  ^^^  ^^^^^  ^^ 

""^(l':Lr;S^r;mnR  ...  Pri..;  r.R.  . ^^  ^^ --^Jt^i: 
R.ants  of  two  or  more  States  «h....  nu.d.fon  -  '^  ^  ^-^^  ,„  ,,,,,  ., 
and  the  States  which  parsed  such  rh.^.s  ar,  ^^^'^^'^^^^^^^^  ,„  ,„,„  ...ttU- 
then,  bcuR  at  the  san,e  tinK-  clanued  ,o  '---'  f  '  f^^J^^.  'o,,,,,,..  of  the 
n.em  of  ,ur,sdi...on.  ^hal  on  .hc  ;  ; '"""  "^^^^'^^^^  '^^,  banner  as  ,s 
-t^^hl^  rrr -u^:  Z^^lrr...  )unsd.ct,on  between 
^^^T:V-;i;:rStatesmC.n.e^s      s...ed^.a..^ 

sive  HRln  and  power  of  y^'^^^:_:'l^::Zr.  the  standardof  we.ghts 
authority,  or  by  tiiat    -.   -;t;  •<--! 


API'ENDIX 


499 


and  measure*  thrniighoiit  the  I  'nht<\  States. —  rrpilating  the  trade  atid  managing 
all  iil'fairs  with  the  Indians,  nt)t  nicniUTs  of  any  of  ihv  Statri.  provided  that  the 
legislative  right  of  any  State  within  it^  own  limit*  ho  not  infringed  or  violated  — 
rstahlishing  an<l  regulatitiK  |iost-(ithit ■^  from  one  State  to  anntlier,  throughout  all 
the  I'nited  States,  and  exattin^,'  '*iicli  posiaKe  on  the  pajiers  passing  thro'  the 
same  as  may  Ik-  retpiisite  to  defray  the  ex|K'nscs  of  the  said  olfue  —  apiMiinting 
all  ofliiers  of  the  land  forces,  in  the  service  of  tlie  I'nited  States,  excepting  regi- 
mental ofTicrrs  —  ap|H)inting  all  the  officers  of  the  naval  forces,  and  commission- 
ing all  officers  whatever  in  the  service  of  the  I'nited  States  —  making  rules  for 
the  government  and  regulation  of  the  sai<l  land  and  naval  forces,  and  directing 
their  operations. 

The  Inited  States  in  Congress  assemhled  shall  have  authority  to  appoint  a 
ciiinniittee,  to  sit  in  the  recess  of  Congress,  to  he  denominated  "  A  Committee  of 
the  States,"  and  to  consist  of  one  dclegace  from  e.ich  State ;  and  to  appoint  such 
other  Committees  and  civil  officers  as  may  he  necessary  for  managing  the  general 
.vtfairs  of  the  I'nited  States  under  their  direction  —  to  appoint  one  of  their  num- 
iiir  to  i>resi(le.  providid  that  no  person  he  allowed  to  serve  in  the  office  of  presi- 
dent more  than  one  year  in  any  term  of  three  years;  to  ascertain  the  necessary 
sinns  of  mo'iey  to  he  raised  for  the  service  of  the  I'nited  States,  and  to  appro- 
pri.ite  and  apply  the  same  for  defraying  the  jiuhlic  expenses  —  to  horrow  money, 
or  emit  hills  on  the  credit  of  the  ( 'nited  States,  transmitting  every  half  year  to 
the  respective  Slates  an  account  of  the  sums  of  money  so  horrowed  or  emitted, — 
to  huild  and  equip  a  navy  —  to  agree  upon  the  numl)er  of  land  forces,  and  to 
make  re<iuisitions  fror;  each  State  for  its  quota,  in  jiroportion  to  the  numlier  of 
white  inhahitants  in  such  State ;  which  recjuisition  sh.ill  he  hinding.  and  thereupon 
the  Legislature  of  each  State  shall  appoint  the  regimental  officers,  raise  the  men 
and  cloath.  arm  ami  ei|uip  them  in  a  solilier  like  manner,  at  the  expense  of  the 
I  iiited  States;  and  the  officers  and  men  so  cloathed,  armed  and  etiuipped  shall 
march  to  the  place  apiiointed,  and  within  the  time  agreed  on  hy  the  I'nited  States 
in  Congress  assemhled:  hut  if  the  L'nitcd  Slates  in  Congress  assemhled  shall,  on 
consideration  of  circumstances  judge  proper  that  any  State  should  not  raise  men, 
or  should  raise  a  smaller  nuniher  than  its  quota,  and  that  any  other  State  should 
raise  a  g'eater  number  of  men  than  the  quota  thereof,  such  extra  numhcr  shall 
Ik"  raised  .  "ficcred,  cloathed.  armed  and  equipped  in  the  same  manner  as  the  quota 
of  -.ich  State,  unless  the  legislature  of  such  State  shall  judge  that  such  extra 
nuniWr  cannot  he  safely  sjjared  out  of  the  same,  in  which  case  they  shall  raise 
ntficer,  cloath,  arm  and  equip  as  many  of  such  extra  number  as  they  judge  can 
be  safely  spared.  And  the  officers  and  men  so  cloathed,  armed  and  eipiipped, 
shall  march  to  the  place  appointed,  and  within  the  time  agreed  on  by  the  United 
States  in  Congress  assembled. 

The  I'nited  States  in  Congress  assemhled  shall  never  engage  in  a  war,  nor 
grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into  any  treaties 
or  alliances,  nor  coin  money,  nor  regulate  the  value  thereof,  nor  ascertain  the 
sums  and  expenses  necessary  for  the  defence  and  welfare  of  the  United  States, 


i  ■■■ 


Hi 


I 


00, 


r» 


500  THE  UNITED  STATES:   A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

or  anv  of  them,  nor  emit  bills,  nor  borrow  money  on  the  credit  of  the  United 
Sta's  nor  appropriate  money,  nor  agree  upon  the  number  of  vessels  of  war.  to 
Stuilt  or  purchased,  or  the  number  of  land  or  sea  forces  to  be  raised,  nor  ap^ 
^im  "commander  in  chief  of  the  army  or  navy,  unless  nme  States  assent  to  the 
^:e:  nor  s^n  a  question  on  any  other  point.  e-pMor  ad)  -„^^ 
to  day  be  determined,  unless  by  the  votes  of  a  majority  of  the  Ln.ted  States 

''''7::V::^:^Toi  the  united  states  shall  have  power  to  adjourn  to  any  time 
within  the  ver.  and  to  any  place  within  the  United  States,  so  that  no  per.od  o 
Td  o  "n  ment  b^  for  a  longer  duration  than  the  space  of  s.x  months,  and  shall 
Xh  lejournal  of  tlJr  proceedings  monthly  except  such  Pajts^th-eof  re 
iatine  to  treaties,  alliances  or  military  operations,  as  m  the.r  judgmen    requ.re 
secresv   anTthe  ^eas  and  nays  of  the  delegates  of  each  State  on  any  quest.on  shal 
S  eme;ed  on  the  journal,  when  it  is  desired  by  any  delegate:  and  the  delegates 
oi  a  S  ate    or  any  of  them,  at  his  or  their  request  shall  be  furmshed  w,th  a 
UanscHpt  ;f  the  s'aid  journal,  except  such  parts  as  are  above  excepted,  to  lay 
before  the  Legislatures  of  the  several  States. 

Article  X      The  committee  of  the  States,  or  any  nme  of  them,  shall  be  au 
thoHzed  to  execute,  in  the  recess  of  Congress,  such  of  the  powers  of  Congress 
as  the  United  States  in  Congress  assembled  by  the  consent  of  mn    S^ates^  «h-^ 
from  time  to  time  think  expediem  to  vest  them  ^f  •  P™^f  ^.fj  "°  ^^f^'.^^ 
deleeated  to  the  said  committee,  for  the  exerc.se  of  which,  by  the  atticles  of  con 
tSation!  the  voice  of  nine  States  in  the  Congress  of  the  United  States  assem- 

^'''^ARTiclfxi'.  Canada  acceding  to  this  confederation.  -"^  jf"*"^  !"  *J^ 
measures  of  the  United  States,  shall  be  admitted  imo.  and  entitled  to  all  the  ad- 
«"s  of  tiis  Union :  but  no  other  colony  shall  be  admitted  into  the  same,  unless 
such  admission  be  agreed  to  by  nine  States. 

Article  XII.  All  bills  of  credit  emitted,  monies  borrowed  and  debts  con 
tracVed  by  or  under  the  authority  of  Congress,  before  the  assembling  of  the 
S  d  S Utes.  in  pursuance  of  the  presem  confederation,  shall  ^e  dee-e^  af^ 
considered  as  a  charge  against  the  United  States,  for  payment  and  «»t.sfaction 
:Z;oi  the  said  Unifedltates,  and  the  public  faith  are  hereby  -1-"  ^ jledg;;^^ 
Articie  \I1I  Every  State  shall  abide  by  the  determinations  of  the  Lmted 
States  in  Congress  assembled,  on  all  questions  which  by  this  confederation  are 
submitted  to  fhem.  And  the  articles  of  this  confederation  shall  be  mviolaby 
observed  by  every  State,  and  the  Union  shall  be  perpetual;  nor  shal  any  alter- 
ation at  any  time  hereafter  be  made  in  any  of  them:  unless  such  alteration  be 
agreed  to  in  a  Congress  of  the  United  States,  and  be  afterwards  confirmed  by 
the  Legislatures  of  every  State.  ,.  ^    ■    i„.  .i,. 

And  whereas  it  hath  pleased  the  Great  Governor  of  the  world  to  incline  the 
hearts  of  the  Legislatures  we  respectively  represent  in  Congress,  to  approve  of 
and  to  authorize  us  to  ratify  the  said  articles  of  confederation  and  perpetual 
union     Know  ve  that  we  the  undersigned  delegates,  by  virtue  of  the  power  and 


APPENDIX 


501 


authority  to  us  given  for  that  purpose,  do  by  these  presents,  in  the  name  and  in 
behalf  of  our  respective  constituents,  fully  and  entirely  ratify  and  confirm  each 
and  every  of  the  said  articles  of  confederation  and  perpetual  union,  and  all  and 
singular  the  matters  and  things  therein  contained:  And  we  do  further  solemnly 
plight  and  engage  the  faith  of  our  respective  constituents,  that  they  shall  abide 
by  the  determinations  of  the  United  States  in  Congress  assembled,  on  all  questions, 
which  by  the  said  confederation  are  submitted  to  them.  And  that  the  articles 
thereof  shall  be  inviolably  observed  by  the  States  we  re(s]pectively  represent,  and 
that  the  Union  shall  be  perpetual. 

In  witness  whereof  we  have  hereunto  set  our  hands  in  Congress.  Done  at 
Philadelphia  in  the  State  of  Pennsylvania  the  ninth  day  of  July  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  seventy-eight,  and  in  the  third  year 
of  the  independence  of  America. 

On  the  part  &  behalf  of  the  State  of  Xezv  Hampshire. 

JOSIAH   BaRTLETT, 

John  Wentworth,  Junr., 

August  8th,  1778. 

On  the  part  and  behalf  of  the  State  of  Massachusetts  Bay. 

John  H.\ncock, 
Samuel  Adams, 
Eldbridge  Gerry, 
Francis  Dana, 
James  Lovell, 
Samuel  Holten. 

Oh  the  part  and  behalf  of  the  State  of  Rhode  Island  and  Providence  Plantations. 

VVilllxm  Ellerv, 
He.sry  Marchant, 
John  Collins. 

On  the  part  and  behalf  of  the  State  of  Connecticut. 

Roger  Sherman, 
Samuel  Huntington, 
Oliver  Wolcott, 
Titus  Hosmer, 
Andrew  Adams. 

On  the  part  and  behalf  of  the  State  of  New  York. 

Jas.  Duane, 
Fra.  Lewis, 
Wm.  Duer, 
Gouv.  Morris. 

On  the  part  and  in  behalf  of  the  State  of  New  Jersey,  Novr.  26,  1778. 

Jno.  Witherspoon, 
Nathl.  Scudder. 


.m 


502  THE  UNITED  STATES:   A  STLDY   IN    INTERNATIONAL  ORGANIZATION 

On  the  part  and  behalf  of  the  State  of  Pennsylvania. 

RoBT.  Morris, 
Daniel  Roberdeau, 
JoNA.  Bayard  Smith, 
William  Clincan. 
Joseph  Reed.  22d  July,  1778. 
On  the  part  &  behalf  of  the  State  of  Dclaivare. 

Tho.  M'Kean.  Feby.  12,  1779. 
John  Dickinson.  May  5th,  1779. 
Nicholas  Van  Dyke. 
On  the  part  and  behalf  of  the  State  of  Maryland 

John  Hanson,  March  1.  l/ol. 
Daniel  Carroll,  Mar.  1,  1781- 
On  the  part  and  behalf  of  thr  State  of  Virginia. 

T<icHARD  Henry  Lee, 
John  Banister, 
Thomas  Adams, 
Jno.  Harvie, 
Francis  Lichtfoot  Lee. 
On  the  part  and  behalf  of  the  State  of  So.  Carolina 

John  Penn,  July  21st,  17/8. 
Corns.  Harnett, 
Jno.  Williams. 
On  the  part  &  behalf  of  the  State  of  South  Carolina. 

Henry  Laurens, 
William  Henry  Drayton, 
Jno.  Mathews, 

RlCIID.  HUTSON, 

Thos.  Heyward.  Junr. 
On  the  part  &  behalf  of  the  State  of  Georgia. 

Jno.  Walton,  24th  July,  1778. 
Edwd.  Telfair. 
Edwd.  Langworthy. 


VII     THE  CONSTITUTION   OF  THR   UNITED   STATES  ADOPTED 

SEPTEMBER  17,  1787,  IN  EFFECT  FROM  AND 

AFTER  MARCH  4,  1789.' 

We  the  People  of  the  United  States,  in  Order  to  form  a  more  perfect  Union, 
establish  Justice,  insure  domestic  Tranquility,  provide  for  the  common  defence 
promote  the  general  Welfare,  and  secure  the  Blessings  of  Liberty  to  ourselves  and 

''^l:^::^:^:^'::::^^^^-^'^^^^^  cC^-SL.  .nd  he„  pUcH  i„  pare„the.,. 
do  not  appear  in  the  origiiui  text. 


APPENDIX 


503 


our  Posterity,  do  ordain  and  establish  this  Constitution  for  the  United  States 

of  America. 

Article  I 

Section  1.  All  legislative  Powers  herein  granted  shall  be  vested  in  a  Con- 
gress o;  the  United  States,  which  shall  consist  of  a  Senate  and  House  of  Repre- 
sentatives. 

Section  2.  "'  The  House  of  Representatives  shall  be  composed  of  Members 
chosen  every  second  Year  by  the  People  of  the  several  States,  and  the  Electors  in 
each  State  shall  have  the  Qualifications  requisite  for  Electors  of  the  most  numer- 
ous Branch  of  the  State  Legislature. 

'  =  '  Xo  Person  shall  be  a  Representative  who  shall  not  have  attained  the  Age 
of  twenty-five  Years,  and  been  seven  Years  a  Citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  Inhabitant  of  that  State  in  which  he  shall  M 
chosen. 

<'>  *  [Representatives  and  direct  Taxes  shall  be  apportioned  among  the  several 
States  which  may  be  included  within  this  Union,  according  to  their  resjiective 
Numbers,  which  shall  be  determined  by  adding  to  the  whole  Number  of  free 
Persons,  including  those  bound  to  Service  for  a  Term  of  Years,  and  excluding 
.ndians  not  taxed,  three  fifths  of  all  other  Persons,]  The  actual  Enumeration 
shall  be  made  within  three  Years  after  the  first  Meeting  of  the  Congress  of  the 
United  States,  and  within  every  subsequent  Term  of  ten  Years,  in  such  Manner 
as  they  shall  by  Law  direct.  The  Number  of  Representatives  shall  not  exceed 
one  for  every  thirty  Thousand,  but  each  State  shall  have  at  Least  one  Repre- 
sentative ;  and  until  such  enumeratio.i  shall  be  made,  the  State  of  New  Hamp- 
shire shall  be  entitled  to  chuse  thr>.-e,  Massachusetts  eight,  Rhode-Island  and 
Providence  Plantations  one,  Connecticut  five.  New-York  six.  New  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North  Carolina 
five.  South  Carolina  five,  and  Georgia  three. 

<♦'  When  vacancies  happen  in  the  Representation  from  any  State,  the  Execu- 
tive Authorit}   thereof  shall  issue  Writs  of  Election  to  fill  such  Vacancies. 

<^'  The  House  of  Representatives  shall  chuse  their  Speaker  and  other  Officers ; 
and  shall  have  the  sole  Power  of  Impeachment. 

Section  3.  ['•'  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for  six  Years ;  and 
each  Senator  shall  have  one  Vote.  ]  t 

<-'  Immediately  after  they  shall  be  assembled  in  Consequence  of  the  first  Elec- 
tion, they  shall  be  divided  as  equally  as  may  be  into  three  Classes.  The  Seats  of 
the  Senators  of  the  first  Class  shall  be  vacated  at  the  Expiration  of  the  second 
Year,  of  the  second  CMass  at  the  Expir.ition  of  the  fourth  Year,  and  of  the  tiiird 
Class  at  the  Expiration  of  the  sixth  Year,  so  that  one-third  may  be  chosen  every 
second  Year;  and  if  X'acancies  happen  by  Resignation,  or  otherwise,  during  the 

*  The  clause  included  in  brackets  is  amended  bv  the  fourteenth  amendment,  second  section 
tThe  fir'.t  paragraph  ol   section  three  of   .\rticle   1,  of   the  Cniislitnti.iM   of   tlic   LniteJ 

States,  and  so  much  of  paragraph  two  of  the  same  section  as  relates  to  iMmg  v.icancies  are 

amended  by  the  seventeenth  ameiMlineiit  to  the  Con-titntion. 


1 


rRf^r 


■^■ 


504  THE   UNITED  STATES:   A   STUDY   IN   INTERNATIONAL  ORGANIZATION 

Recess  of  the  Legislature  of  any  State,  the  Executive  thereof  may  make  tem- 
porary Appointments  [until  the  next  Meeting  of  the  Legislature,  which  shall  then 
fill  such  Vacancies]. 

'"  No  Person  shall  he  a  Senator  who  shall  not  have  attained  to  the  Age  of 
thirty  Years,  and  been  nine  Years  a  Citizen  of  the  United  States,  and  who  shall 
not.  when  elected,  he  an  Inhabitant  of  that  State  for  which  he  shall  be  chosen. 

'*'  The  \ice  President  of  the  I'nited  States  shall  be  President  of  the  Senate, 
but  shall  have  no  Vote,  unless  they  be  e(|ually  divided. 

""'  The  Senate  shall  chuse  their  other  Officers,  and  also  a  President  pro  tem- 
pore, in  the  Absence  of  the  \ice  President,  or  when  he  shall  exercise  the  Office  of 
President  of  the  United  States. 

'•'  The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments.  When  sit- 
ting for  that  Puriwse.  they  shall  be  on  Oath  or  Affirmation.  When  the  President 
of  the  United  States  is  tried,  the  Chief  Justice  shall  preside:  And  no  Person 
shall  be  convicted  without  the  Concurrence  of  two  thirds  of  the  Members  present. 
'"  Judgment  in  Cases  of  Impeachment  shall  not  extend  t.-.rther  than  to  re- 
moval from  Office,  and  disqualification  to  hold  and  enjoy  any  Office  of  honor, 
Trust  or  Profit  under  the  United  States :  but  the  Party  convicted  shall  neverthe- 
less be  liable  and  subject  to  Indictment,  Trial,  Judgment  and  Punishm-nt,  ac- 
cording to  Law. 

Section  4.  '"  The  Times,  Places  and  Manner  of  holding  Elections  for  Sena- 
tors and  Representatives,  shall  be  prescribed  in  each  State  b)"  the  Legislature 
thereof ;  but  the  Congress  may  at  any  time  by  Law  make  or  alter  such  Regula- 
tions, except  as  to  the  Places  of  chusing  Senators. 

'-'  The  Congress  shall  assemble  at  least  once  in  ry  Year,  and  such  Meeting 
shall  be  on  the  first  Monday  in  December,  unles  ■  y  shall  by  Law  appoint  a 
different  Day. 

Sfcti.in  3.  ">  Each  House  shall  be  the  Judge  of  the  Elections,  Returns  and 
Qualifications  of  its  own  .Members,  and  a  Majority  of  each  shall  constitute  a 
Quorum  to  do  Business;  but  a  smaller  Number  may  adjourn  from  day  to  day, 
Tnd  may  be  authorized  to  compel  the  .\ttendance  of  absent  Members,  in  such 
M.mncr.  antl  under  such  Penalties  as  each  House  may  provide. 

'-'  Each  House  m.iy  determine  the  Rules  of  its  Proceedings,  punish  its  Mem- 
bers for  disorderly  Behaviour,  and,  with  the  Concurrence  of  two  thirds,  expel  a 
Meml)cr. 

'■"  Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  Parts  as  may  in  their  Judgment  require  Secrecy; 
and  the  Ve.fs  and  Nays  of  the  Members  of  either  House  on  any  question  shall,  at 
the  Desire  of  one  fifth  of  those  Present,  be  entered  on  the  Journal. 

I"  Neither  House,  during  the  Session  of  Congress,  shall,  without  the  consent 
of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  Place  than  that 
in  which  the  two  Houses  shall  be  sitting. 

Section  6.  '"The  Senators  and  R( ;  resentatives  shall  receive  a  Compensa- 
tion for  their  Services,  to  be  ascertained  by  Law,  and  paid  out  of  the  Treasury  of 


APPENDIX 


505 


the  United  States.  They  shall  in  all  Cases,  except  Treason.  Felony  and  Breach 
of  the  Peace,  be  privileged  from  Arrest  during  their  Attendance  at  the  Session  of 
their  respective  Houses,  and  in  going  to  and  returning  from  the  same;  and  for 
any  Speech  or  Debate  in  either  House,  they  shall  not  be  questioned  in  any  other 
Place. 

'"  No  Senator  or  Representative  shall,  during  the  Time  for  which  he  was 
elected,  be  appointed  to  any  civil  Office  under  the  .Authority  of  the  United  States, 
which  shall  have  been  created,  or  the  Emoluments  whereof  shall  have  been  en- 
creased  during  such  time;  and  no  Person  holding  any  Office  under  the  I'nited 
States,  shall  be  a  Member  of  either  House  during  his  Continuance  in  Office. 

Skctkin  7.  '"  All  Rills  for  raising  Revenue  shall  originate  in  the  House  of 
Representatives ;  but  the  Senate  may  propose  or  concur  with  Amendments  as  on 
other  I  Jills. 

"2'  Every  Bill  which  shall  have  passed  the  House  of  Representatives  and  the 
Senate,  shall,  before  it  become  a  Law.  be  presented  to  the  President  of  the  United 
States;  H  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objec- 
tions to  that  House  in  which  it  shall  have  originated,  who  shall  enter  the  Objec- 
tions at  large  on  their  Journal,  and  proceed  to  reconsider  it.  H  after  such  Recon- 
sideration two  thirds  of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be  sent, 
together  with  the  Objections,  to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two  thirds  of  that  House,  it  shall  become  a  Law. 
Rut  in  all  such  Cases  the  \otes  of  both  Houses  sh.ill  be  determined  by  Yeas  and 
Nays,  and  the  Names  of  the  Persons  voting  for  and  against  the  Bill  shall  be 
entered  on  the  Journal  of  each  House  respectively  H  any  Bill  shall  not  be  re- 
turned by  the  President  within  ten  Days  (Sundays  excej  ted)  after  it  shall  have 
been  presented  to  him.  the  Same  shall  be  a  Law,  in  like  Manner  as  if  he  had 
signed  it.  unless  the  Congress  by  their  Adjournment  prevent  its  Return,  in 
which  Case  it  shall  not  be  a  Law. 

'"  Every  Order,  Resolution,  or  \'ote  to  which  the  Concurrence  of  th..-  Senate 
and  House  of  Representatives  may  be  necessary  (except  on  a  question  of  Ad- 
journment) shall  be  presented  to  the  President  of  the  United  States:  and  before 
the  Same  shall  take  Eflfect.  shall  be  approved  by  him,  or  being  disapproved  by  him. 
shall  lie  repassed  by  two  thirds  of  the  Senate  and  House  of  Representatives,  ac- 
cording to  the  Rules  and  Limitations  prescribed  in  the  Case  of  a  Rill. 

Section  8.  The  Congress  shall  have  Power  '"  To  lay  and  collect  Taxes, 
Duties.  Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the  common  De- 
fence and  general  Welfare  of  the  United  States;  but  all  Duties.  Imposts  and 
Excises  shall  be  uniform  throughout  the  United  States; 

'  =  '  To  borrow  money  on  the  credit  of  the  Uniteo  States; 

'"  To  regulate  Commerce  with  foreign  Nations,  and  among  the  several  States. 
and  with  the  Indian  Tribes; 

'*'  To  establish  an  uniform  Rule  of  Naturalization,  and  uniform  Laws  on  the 
ibject  of  Bankruptcies  throughout  the  United  States; 


*|^ 


^: 


1,5 

y 


506  THE  UNITED  STATES:   A  STUDY  IN   INTERNATIONAL  ORGANIZATION 

<»)  To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin,  and  fix 

the  Standard  of  Weights  and  Measures ;  .  .  » 

...  To  provide  for  the  Punishment  of  counterfeiting  the  Securities  and  current 

Coin  of  the  United  States ; 

'■'To  e«tahlish  Post  Offices  and  post  Roads; 

...To  promote  the  Progress  of  Science  and  useful  Arts,  by  secunng  or 
limited  Times  to  Authors  and  Inventors  the  exclusive  Right  to  the.r  respective 
Writings  and  Discoveries ; 

>».  To  constitute  Tribunals  inferior  to  the  supreme  Court ;  ^    . .  .    - 

<>».  To  define  and  punish  Piracies  and  Felonies  committed  on  the  high  beas. 
and  Offenses  against  the  Law  of  Nations ;  .    .        .       i     r»  i.. 

.".To  declare  War.  grant  Letters  of  Marque  and  Reprisal,  and  make  Rules 
concerning  Captures  on  Land  and  Water ;  .„  »i,,»  tt.- 

n=>  To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to  that  bse 
shall  be  for  a  longer  Term  than  two  Years; 

'"'To  provide  and  maintain  a  Navy;  .   .     ,     a    „^  «,«nl 

'.•'  To  make  Rules  for  the  Government  and  Regulation  of  the  land  and  naval 

^°T"  To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of  the  Union, 
suppress  Insurrections  and  repel  Invasions; 

''-  To  provide  for  organizing,  arming,  and  disciplining  the  M'^'tia  and  or 
governing  uch  Part  of  them  as  may  be  employed  in  the  Service  of  the  United 
States  reserving  to  the  States  respectively,  the  Ap,K>intment  o  the  Officer.,  and 
the  Authority  of  training  the  Militia  according  to  the  disc.phn.  prescribed  by 

^""flfjo  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over  such  Dis- 
trict (not  exceeding  ten  Miles  square)  as  may.  by  Cession  of  particular  States 
an  1  tie  Acceptance'of  Congress,  become  the  seat  of  the  Government  «    the  United 
|"ates   and  to  exercise  like  Authority  over  all  Places  purchased  by  the  Consen 
o     he  Legislature  of  the  State  in  which  the  Same  shall  be.  for  the  Erection  of 
Forts.  Magazines.  Arsenals.  dock-Yards,  and  other  needful  Bu.ldmgs ;  -  And 

'>^'  To  make  all  Laws  which  .hall  be  necessary  and  proper  for  carrying  into 
Execution  the  foregoing  Powers,  and  all  other  Powers  vested  by  thisConst.tution 
h,  the  .  ;ovcrnmcnt  of  the  United  States,  or  in  any  Department  or  Officer  thereof^ 
Secti'^n  9  '"The  Migration  or  Importation  of  such  Persons  as  any  of 
the  States' now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by 
the  Congress  prior  to  the  Year  one  thousand  eight  hundred  and  eight,  but  a  tax 
or  duty  may  be  imposed  on  such  Importation,  not  exceeding  ten  dollars  for  each 

Person.  ,    „  ,  ,    , 

'  =  '  The  Privilege  of  the  Writ  of   Habeas  Corpus  shall  not  be  suspended. 

unless  when  in  Cases  of  Rebellion  or  Invasion  the  public  Safety  may  require  it. 
<3>  No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 


APPENDIX 


507 


*  <<>  No  Capitation,  or  other  direct.  Tax  shall  be  laid,  unless  in  Proportion  to 
the  Census  or  Enumeration  herein  before  directed  to  be  taken. 

<'>  No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any  State. 

<•'  No  Preference  shall  lie  given  by  any  Regulation  of  Commerce  or  Reve- 
nue to  the  Ports  of  one  State  over  those  of  another :  nor  shall  Vessels  bound  to, 
or  from,  one  State,  be  obliged  to  enter,  clear,  or  pay  Duties  in  another. 

'"  No  Money  shall  be  drawn  from  the  Treasury,  but  in  Consequence  of 
Appropriations  made  by  Law ;  and  a  regular  Statement  and  .\ccount  of  the  Re- 
ceipts and  F.xpcnditurcs  of  all  public  Money  shall  be  published  from  time  to  time. 

""  No  Title  of  Nobility  shall  be  granted  by  the  United  States;  and  no  Person 
holding  any  Office  of  i'rofit  or  Trust  under  them,  shall,  without  the  Consent  of 
the  Congress,  accept  of  any  present.  Emolument,  Ottice,  or  Title,  of  any  kind 
whatever,  from  any  King,  Prince,  or  foreign  State. 

Section  10.  "»  No  State  shall  enter  into  any  Treaty,  Alliance,  or  Confeder- 
ation; grant  Letters  of  Marque  and  Reprisal;  coin  Money;  emit  Hills  of  Credit; 
make  any  Thing  but  gold  and  silver  Coin  a  Tender  in  Payment  of  Debts ;  pass 
any  Bill  of  Attainder,  ex  post  f.icto  Law.  or  Law  impairing  the  Obligation  of 
Contracts,  or  grant  any  Title  of  Nobility. 

<='  No  State  shall,  without  the  Consent  of  the  Congress,  lay  any  Imposts  or 
Duties  on  Imports  or  Exports,  excei)t  what  may  be  .ibsoliitely  necessary  for  exe- 
cuting its  inspection  Laws:  and  tlie  net  Produce  of  alt  Duties  and  Imimsts,  laid 
by  any  State  on  Imports  or  Exports,  siiall  be  for  the  C se  of  the  Treasury  of  the 
United  States :  and  all  such  Laws  shall  be  subject  to  the  Revision  and  Control 
of  the  Congress. 

'5'  No  State  shall,  without  the  Consent  of  Congress,  lay  any  duty  of  Tonnage, 
keep  Troops,  or  Ships  of  War  in  time  of  i'cace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a  foreign  Power,  or  engage  in  War.  unless 
actually  invaded,  or  in  such  imminent  Danger  as  will  not  admit  of  delay. 

Article  II 

Section  1.  '"  The  executive  Power  shall  be  veste.l  ir  a  iVesidcnt  of  the 
United  States  of  America.  He  shall  iiold  his  Otiice  during  the  Term  of  four 
Years,  and.  together  with  the  \"ice  President,  chosen  for  the  same  Term,  be 
elected,  as  follows : 

<='  Each  State  shall  appoint,  in  such  Manner  as  tlie  Legislature  thercot  m.ay 
direct  a'  Number  of  Electors,  e.|u:.l  to  the  whole  Number  of  Senators  and  Rep- 
resentatives to  which  the  State  may  be  entitled  in  the  Congress:  but  no  Senator 
or  Representative,  or  Person  holding  an  Otiice  of  Trust  or  Profit  under  the 
United  States,  shall  be  aiii>ointed  an  Elector. 

t  [The  Electors  shall  meet  in  their  respective  States,  and  vote  by  Ballot  for 
two  persons,  of  whom  one  at  least  shall  n<U  be  an  Inhabita.n  of  the  san.e  State 
with  themselves.  And  thev  shall  make  a  List  of  all  the  Persons  voted  tor.  and 
of  the  Number  of  Notes  for  each;  which  List  they  shall  sign  and  certify,  and 

♦.Sec  XVI  .XiiKiicliiiiiU. 

tThis  clause  has  been  superseded  by  the  twelfth  amendment. 


I 


i' 


0 


508  THE  UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATIOK 

transmit  sealetl  to  the  Scat  of  the  Government  of  the  United  States,  directed  to 
the  President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the  Presence 
of  the  Senate  and  House  of  Representatives,  oiien  all  the  Certificates,  and  the 
Votes  shall  then  be  counted.  The  Person  having  the  greatest  Number  of  Votes 
shall  be  the  President,  if  such  Numl)er  be  a  Majority  of  the  whole  N'umber  of 
Electors  apiwinted :  and  if  there  be  more  than  one  who  have  such  Majority,  and 
have  an  equal  Number  of  Votes,  then  the  House  of  Representatives  shall  imme- 
diately chuse  bv  Ballot  one  of  them  for  President;  and  if  no  Person  have  a 
Majority,  then  from  the  five  highest  on  the  List  the  s:'.id  House  shall  in  like 
Manner' chuse  the  President.  Hut  in  chusing  the  President,  the  Votes  shall  be 
taken  by  States,  the  Representation  from  each  State  having  one  Vote ;  A  (juorum 
for  this  Purpose  shall  consist  of  a  Member  or  Members  from  two  thirds  of  the 
States,  and  a  Majority  of  all  the  States  sh.ill  be  necessary  to  a  Choice.  In  every 
Case,  after  the  Choice  of  the  President,  the  Person  having  the  greatest  Number 
of  \'otes  of  the  Electors  shall  be  the  \'ice  President.  Rut  if  there  should  re- 
main two  or  more  who  have  equal  \'otes.  the  Senate  shall  chuse  from  them  by 
Ballot  the  \ice  President.) 

'"Tiie  Congress  m.iy  determine  the  Time  of  chusing  the  Electors,  and  the 
Day  on  which  they  shall  give  their  \'otes :  which  Day  shall  be  the  same  through- 
out the  United  States. 

•*•  No  Person  except  a  natural  born  Citizen,  or  a  Citizen  cf  the  United  States, 
at  the  time  of  the  Adoption  of  this  Constitution,  shall  l>e  eligible  to  the  Office 
of  President :  neither  shall  any  Person  be  eligible  to  that  Office  who  shall  not 
have  attained  to  the  Age  of  thirty  five  Years,  and  been  fourteen  Years  a  Resi- 
dent within  the  United  States. 

«5'  In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his  Death, 
Resignation,  or  Inability  to  discharge  the  Powers  and  Duties  of  the  said  Office, 
the  Same  shall  devolve  on  the  Vice  President,  and  the  Congress  may  by  Law 
provide  for  the  Case  of  Removal,  Death,  Resignation  or  Inability,  both  of  the 
President  and  \ice  President,  declaring  what  Officer  shall  then  act  as  President, 
and  such  Officer  shall  act  accordingly,  until  the  Disability  be  removed,  or  a 
President  shall  l)e  elected. 

""  The  President  shall,  at  stated  Times,  receive  for  his  Services,  a  Compen- 
sation, which  shall  neither  be  encreased  nor  diminished  during  the  Period  for 
which  he  shall  have  been  elected,  and  he  shall  not  receive  within  that  Period  any 
other  Emolument  from  the  I'nited  States,  or  any  of  them. 

'"  Before  he  enter  on  the  Ex.  cation  of  his  Office,  he  shall  take  the  following 
Oath  or  Affirmation:—"  1  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  Office  of  President  of  the  I'nited  States,  and  will  to  the  best  of  my 
Ability,  preserve,  protect  and  <lefend  the  Constitution  of  the  United  States." 

Section-  2.  '"The  President  sli.iU  be  Commander  in  Chief  of  the  Army 
and  Navy  of  the  United  States,  and  nf  the  Militia  of  the  several  States,  when 
called  into  the  actual  Service  of  the  United  States ;  he  may  require  the  Opinion, 
in  writing,  of  the  principal  OlTicer  in  each  of  the  executive  Departments,  upon 


APPENDIX 


509 


any  Subject  relating  to  the  Duties  of  their  respective  Offices,  and  he  shall  have 
i'ower  to  grant  Reprieves  ami  I'ardons  for  Offences  against  the  United  States, 
except  in  Cases  of  impeachment. 

<-'  He  shall  have  I'ower,  by  and  with  the  Advice  and  Consent  of  the  Senate, 
to  make  Treaties,  provided  two  thirds  of  the  Senators  present  concur ;  and  he 
shall  nominate,  and  by  and  with  the  Advice  and  Consent  of  the  Senate,  shall 
appoint  Ambassadors,  other  public  Ministers  and  Consuls,  Judges  of  the  su- 
preme Court,  anil  all  other  (  MVict-rs  of  the  I'lmed  States,  whose  Appointments 
are  not  herein  otherwise  provide<l  for,  anil  which  shall  be  established  by  Law : 
but  the  Congress  may  by  Law  vest  the  Ai)pointmcnt  of  such  inferior  OtTicers, 
as  the}-  think  projjcr,  in  the  President  alone,  in  the  Courts  of  Law,  or  in  the 
Ileails  of  Departments. 

'^'  The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may  happen 
during  the  Recess  of  the  Senate,  by  granting  Commissions  which  shall  expire  at 
the  I'"nd  of  their  next  Session. 

SiXTioN  3.  He  shall  from  time  to  time  give  to  the  Congress  Information  of 
the  State  of  the  I'nion,  and  recommend  to  their  Consideration  such  Measures  as 
he  shall  judge  necessar>'  and  ex|R'dient ;  he  may.  on  extraordinary  ( )ccasioiis, 
convene  both  Houses,  or  cither  of  them,  ami  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  .\djournnient,  he  may  adjourn  them  to  such 
Time  as  he  shall  think  projwr ;  he  shall  receive  .Ambassadors  and  other  public 
Ministers;  he  shall  take  Care  that  the  Laws  be  faithfully  executed,  and  shall 
Commission  all  the  Officers  of  the  United  States. 

Section  4.  The  President,  \'ice  President  and  all  civil  Ofikers  of  the 
United  States,  shall  be  removed  from  (Wice  on  Impeachment  for,  and  Conviction 
of,  Treason,  Bribery,  or  other  high  Crimes  and  Misdemeanors. 

Article  III 


1 

i" 


Section  L  The  judicial  Power  of  the  United  States,  shall  be  vested  in  one 
supreme  Court,  and  in  suc'.i  inferior  Courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  The  Judges,  both  of  the  supreme  and  inferior  Courts, 
shall  hold  their  Offices  during  good  Iiehaviour.  and  shall,  at  stated  Times,  re- 
ceive for  their  Services,  a  Compensation,  which  shall  not  be  diminished  during 
their  Continuance  in  Office. 

Section  2.  "*  The  judicial  Power  shall  extend  to  all  Cases,  in  Law  ami 
Equity,  arising  under  this  Constitution,  the  Laws  of  the  United  States,  and 
Treaties  made,  or  which  shall  be  made,  under  their  Authority :  —  to  all  Cases 
affecting  ,\mbassadors,  or  other  public  Ministers  and  Consuls:  —  to  all  Cases 
of  admiralty  and  maritime  Jurisdiction;  —  to  Controversies  to  which  the  United 
States  shall  be  a  Party  ;  —  to  Controversies  between  two  or  more  States  ;  —  be- 
tween a  State  and  Citizens  of  another  StPte;  —  Iwtween  Citizens  of  different 
States;  —  between  Citizens  of  the  same  State  claiming  Lands  under  Grants  of 
different  States,  and  between  a  State,  or  the  Citizens  thereof,  and  foreign  States, 
Citizens  or  Stjhjects. 


m 


510 


THE   VNITED  STATES:    A   STIPY   IM    INTERNATIONAL  ORGANIZATION 


-S 


.:.  ,n  all  Case,  affecting  Ambassa.lor..  other  public  Minister,  ami  Consuls 
a.ul  tint,  in  .hich  a  State  Mull  he  Party,  the  supren.e  ^-"J*;;"   --j;^,", 
Inris,liction      In  all  the  other  Cases  lufore  nientione.l,  the  sui.rerne  Court  shall 
iriinXte  Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Reinilatinns  as  the  C^on^ress  shall  make.  ,    ..  .     ,      i 

.-  it  TriaTof  all  Crimes,  excpt  in  Cases  of  lm,>eachment.  shall  he  hy  Jury ; 
and  such  Trial  shall  be-  held  in  the  State  where  the  said  Crimes  shall  have  been 
committe.1:  but  when  not  committe<l  within  any  State,  the  Tr.al  shall  be  at  such 
n.ice  or  Places  as  the  Congress  rfiay  by  Law  have  directed. 

i  T.nv  .V  -  Treason  .Rainst  the  Cni.ed  States,  shall  consist  only  m  levy- 
incWir  against  them,  or  in  a.lherinR  to  their  Knem.es.  RivmR  them  A.d  and 
Snfort  No  Person  shall  Ik-  convic.e.l  of  Treason  unless  on  the  Testmiony  of 
two  W  ituesses  t<.  the  same  overt  .\ct.  or  on  Confession  m  o,>en  Court. 

-'  The  congress  shall  haNe  Power  to  declare  the  Punishment  of  Treason,  bu 
„o  .M.aindcr  of  Treason  shall  work  Corruption  of  Ulood,  or  Forfeiture  except 
during  the  Life  of  the  Person  attainted. 

Article  IV 

Section  1  Full  Faith  and  Credit  shall  l.e  given  in  each  State  to  the  public 
Xcts  Records,  .and  judicial  Pn.eedings  of  every  other  State.  And  the  Con- 
gres'  „uu  bv  general  l.uvs  prescribe  the  Manner  in  which  such  Acts.  Records 
and  iVuceedings  shall  be  prove.l.  an.l  the  Effect  thereof.  „  .,  •  ■,     .. 

SrcfuN  2  ""  The  Citizens  of  each  State  ^hall  be  entitled  to  all  Pnv.leges 
and  Imnnmitics  of  Citizens  in  the  several  States.  ,       ^  •  t,^ 

T  Person  charged  in  anv  State  with  Treason.  Felony,  or  other  Cnme.  who 
shall  .1ce  from  lustice.  and  be  found  in  another  State  shall  on  Demand  of  the 
executive  Authori.v  of  the  State  from  which  be  .led.  be  delivered  up.  to  be  re- 
moved to  the  State  having  jurisdiction  of  the  Crmie. 


vo  I 


'erson 


If  n.i\iiiK  Jill  i.-^i'v..-- -    -  .        ,      ,  .1  f 

hel.l  to  'Service  or  Labour  in  one  State,  under  the  Laws  thereof. 
esc-iMUK  into  another,  shall,  in  C-onser,„ence  of  anv  Law  or  Regul.ttu.n  therein 
be  .11  scli;.r«<-d  from  such  S.rvice  or  Labour,  but  shall  be  .lehvered  up  on  Claim 
of  the  Panv  to  whom  sudi  Service  or  Labour  mav  be  .lue.  ,  .    ,,   . 

ShrTK.s-  ^  '"  N"'-w  States  mav  be  ndmittcl  by  the  Con-ress  into  this  I  mon; 
butno  new  State  shall  be  fornuM  or  erecte.l  within  the  jurisdiction  of  any  other 
State  nor  anv  Slate  be  formed  by  the  Junction  of  two  or  more  States,  or  I  arts 
of  States,  w.tlinut  the  Consent  of  the  Legishtures  of  the  States  concerned  as  well 

as  of  tiie  Congress.  .r   i  i>   i 

.-  The  Congres.  shall  have  Power  to  .lispose  of  and  make  all  needful  Rules 
and  Regulaticns  respecting  the  Territory  or  other  Property  belonging  to  the 
United  States;  an.l  nothing  in  this  Constitution  shall  be  so  construe.l  as  to  1  reju- 
dice  anv  Claims  of  the  Cnite.l  States,  or  of  any  particular  St.nte. 

<■.-.  T-.N  4  The  Cnited  St.ites  shall  guaramee  to  every  State  in  this  Lnion 
a  Republican  Form  of  Clovernment.  and  shall  protect  each  of  them  against  Inva- 


APPENDIX  511 

sion;  and  on  Application  of  the  Legislature,  or  of  the  Executive  (when  the 
Legislature  cannot  be  convened)  against  domestic  Violence. 

Akticle  V 

The  Congress,  whenever  two-third.s  of  both  Houses  shall  deem  it  necessary, 
shall  pro|)osc  Amendments  to  this  Constitution,  or,  on  the  Application  of  the 
Legislatures  of  two  thirds  of  the  several  States,  shall  call  a  Convention  for  pro- 
posing Amcmlnitnts,  which,  in  either  Case,  shall  be  valid  to  all  Intents  and  Pur- 
poses, as  p;irt  of  this  Constitution,  wdon  ratified  by  the  Legislatures  of  three 
fourths  of  the  several  States,  or  by  Conventions  in  three  fourths  thereof,  as  the 
one  or  the  other  Mo<le  of  Ratification  may  be  proposed  by  the  Congress;  Pro- 
vided that  no  Amendment  which  may  be  made  prior  to  the  Year  One  thousand 
eight  hundred  and  eight  shall  in  any  Manner  affect  the  first  and  fourth  Clauses 
in  the  Nmth  Section  of  the  first  Article ;  and  that  no  State,  without  its  Consent, 
shall  be  deprived  of  its  e<iual  Suffrage  in  the  Senate. 

Article  \'I 

<"  .Ml  Debts  contracted  and  F.ngafjemenfs  entered  into,  before  the  Adoption 
of  this  Constitution,  shall  be  as  valid  against  the  I  'nitcd  Staf^  .  'der  this  Con- 
stitution, as  under  the  Confeder-ition. 

'■'  This  Constitution,  and  the  Laws  of  the  United  Strtcs  which  shall  be  made 
in  Pursuance  thereof ;  and  all  Treaties  made,  or  which  shall  bo  made,  under  the 
Authority  of  the  United  States,  shall  be  the  supreme  Law  of  the  Land ;  and  the 
Judges  in  every  State  shall  l)e  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

'"  The  Senators  and  Representatives  In'fore  mentioned,  and  the  Members  of 
the  several  State  Legislatures,  and  all  executive  and  judicial  Officers,  both  of  the 
United  States  and  of  the  several  State?,  shall  be  bound  by  Oath  or  Attirmation, 
to  support  this  Constitution :  but  no  religious  Test  shall  ever  be  required  as  a 
Qualification  to  any  Office  or  public  Trust  under  the  United  States. 

Article  \TI 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be  sufficient  for  the 
Establishment  of  this  Constitution  i)ctween  the  States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  .States  present  the 
Seventeenth  Day  of  September  in  the  Year  of  our  Lord  one  thousand  seven 
hundred  and  Kighty  seven,  and  of  the  Independence  of  the  United  States  of 
.America  the  Twelfth.  IN  WITNESS  whereof  We  have  hereunto  subscribed 
our  Names. 

G°.:  WASHIXGTOX 
Presidt  and  deputy  from  I'trginia 


f 


512  THE  USITIO  ITATM:   a  study  in    INTMNATIOHAL  OtGAKIXATIOH 


John  Lancdon 


Nathaniel  Goiham 


Wm.  Saml.  Johnson 


Alexandeb  Hamilton 


Wil:  Livingston 
David  Breablev 


B.  Franklin 
RoBT.  Morris 
Thus.  Fitzsimons 
James  Wilson 


r,Eo:  Read 
JOHN  Dickinson 
Jaco:  Brwim 


James  McHenry 
Danl.  Carroll 


John  Blair  — 


Wm.  Blount 
Hn  Williamson 


Ntw  Hampshire. 

Nicholas  Gilman 

Massachusetts. 

RlFUS  i;iNo 

ConntclicMt. 

Roger  Sherman 

Ntw  York. 


New  Jersey. 

Wm.  Patterson 
Jona:  D.wton 

Pennsyhvnia. 

Thomas  Mipflin 
Geo.  Clymer 
Jared  Incfrsoll 
Gouv  Morris 

Delaware. 

Gunning  Bedford  Jun 
Richard  Bassett 


Maryland. 

Dan  of  St  Thos  Jenifer 


Virginia. 

James  Madison  Jr. 

North  Carolina 

Richd  Dobbs  Spaight 


APPENDIX 


513 


J    Rl'tleogi 

LUAJtUU    I'lNCKNEY 


South  Carolina. 

ClIAtLES    COTESWOITU    PlNCKNEY 
I'lEKCE    bUTLEK 


WiLUAM  Few 


(j*orgia. 

Abr  Baldwin 


Attest 


WILLIAM  JACKSUN  Hecretarj 


»k=- 


,  ''t"^ 


0 


i » 


B     AN  ORDIXANTE  FOR  THE  GOVERNMENT  OF  THE  TERRITORY 

OF  THE  UNITED  STATES  NORTHWEST 

OF  THE  RIVER  OHIO ' 

Section  1.  Br  it  ordained  by  the  United  States  in  Congress  assembled. 
That  the  said  territory,  for  the  purpose  of  temporary  government,  he  one  district, 
subject,  however,  to  be  divided  into  two  districts,  as  future  circumstances  may, 
in  the  opinion  of  Congress,  make  it  expedient. 

Sf.c.  2.     Be  it  ordained  by  the  authority  aforesaid,  That  the  estates  both  of 
resident  and  non-resident  proprietors  in  the  said  territory,  dying  intestate,  shall 
descend  to,  and  be  distributed  among,  their  children  and  descendants  of  a  deceased 
child  in  efjual  parts,  the  descendants  of  a  deceased  child  or  grandchild  to  take 
the  share  of  their  deceased  parent  in  equal  parts  among  them ;  and  where  there 
shall  be  no  children  or  descendants,  then  in  equal  parts  to  the  next  of  km,  in 
equal  degree ;  and  among  collaterals,  the  children  of  a  deceased  brother  or  sister 
of  the  intestate  -shall  have,  in  equal  parts  among  them,  their  deceased    ^rent's 
share ;  and  there  sh.iU.  in  no  case,  be  a  distinction  between  kindred  of  t.      whole 
and  half  blood :  saving  in  all  cases  to  the  widow  of  the  intestate,  her  third  part 
of  the  real  estate  for  life,  and  one-third  part  of  the  personal  estate;  and  this 
law  relative  to  descents  and  dower,  shall  remain  in  full  force  until  altered  by  the 
legislature  of  the  district.  '  And  until  the  governor  and  judges  sh.ill  adopt  laws 
as  hereinafter  mentioned,  estates  in  the  said  territory  may  be  devised  or  be- 
queathed by  wills  in  wr;tii:.:r,  i^iBned  and  sealed  by  him  or  her  in  whom  the  estate 
may  be  (l)eing  of  full  age),  and  attested  by  three  witnesses:  and  real  estates 
may  be  conveyed  by  lease  and  release,  or  bargain  and  sale,  signed,  sealed,  and 
delivered  by  the  person,  being  of  full  age,  in  whom  the  estate  may  be,  and  at- 
tested by  two  witnesses,  provided  such  wills  be  duly  proved,  and  such  conveyances 
be  acknowledged,  or  the  execution  thereof  duly  proved,  and  be  recorded  within 
one  year  after  pr.>fH.-r  magistrates,  courts,  and  registers,  shall  be  appointed  for 
that   purpose;  and  pers«wal  property   may  be  transferred  by   delivery,   saving, 
however   to  the  French  and  Canadian  inh.ibitants.  and  other  settlers  of  the  Kas- 
kaskics.  Saint  Vincents,  and  the  neighboring  villages,  who  have  heretofore  pro- 
fessed themselves  citizens  of  X'irginia,  their  laws  and  customs  now  m  force  among 
them,  relative  to  tiic  descent  and  conveyance  of  property. 

s'kc.  3.  Be  it  ordained  by  the  authority  aforesaid.  That  there  sluiU  be 
appointed,  from  time  to  time,  by  Congress,  a  governor,  whose  commission  shall 
continue  in  force  for  the  term  of  three  years,  unless  sooner  revoked  by  Congress; 
he  shall  reside  in  the  district,  and  have  a  freehold  estate  therein,  in  one  thousand 
acres  of  land,  while  in  the  exercise  of  his  office. 

Sec.  4.     There  shall  be  appointed  from  time  to  time,  by  Congress,  a  secre- 

>  Kr.xud  Statutes  of  the  Uniud  StMes.  2d  cd.,  1878,  pp.  13-16. 

SU 


APPENDIX 


515 


tary,  whose  commission  shall  continue  in  force  for  four  years,  unless  sooner 
revoked ;  he  shall  reside  in  the  district,  and  have  a  freehold  estate  therein,  in  five 
hundred  acres  of  land,  while  in  the  exercise  of  his  office.  It  shall  be  his  duty 
to  keep  and  preserve  the  acts  and  laws  passed  by  the  legislature,  and  the  public 
records  of  the  district,  and  the  proceedings  of  the  governor  in  his  executive 
department,  and  transmit  authentic  copies  of  such  acts  and  proceedings  every  six 
months  to  the  Secretary  of  Congress.  There  shall  also  be  appointed  a  court, 
to  consist  of  three  judges,  any  two  of  whom  to  form  a  court,  who  shall  have  a 
common-law  jurisdiction,  and  reside  in  the  district,  and  have  each  therein  a 
freehold  est.ite,  in  five  hundred  acres  of  l.ind.  while  in  the  exercise  of  their 
offices ;  and  their  commissions  shall  continue  in  force  during  good  behavior. 

Sec.  5.  The  governor  and  judges,  or  a  majority  of  tliem,  shall  .tdopt  and 
publish  in  the  di.strict  such  laws  of  the  original  States,  criminal  and  civil,  as  may 
be  necessary,  and  best  suited  to  the  circumstances  of  the  district,  and  report 
them  to  Congress  from  time  to  time,  which  laws  shall  be  in  force  in  the  district 
until  the  organization  of  the  general  assembly  therein,  unless  disapproved  of  by 
Congress;  but  aftet^vards  the  legislature  shall  have  authority  to  alter  them  as 
they  shall  think  fit. 

Sec.  6.  The  governor,  for  the  time  being,  shall  be  commander-in-chief  of 
the  militia,  appoint  and  commission  all  officers  in  the  same  below  the  rank  of 
general  officers;  all  general  officers  shall  be  appointed  and  commissioned  by 
Congress. 

Sec.  7.  Previous  to  the  organization  of  the  general  assembly  the  governor 
shall  appoint  such  magistrates,  and  other  civil  officers,  in  each  county  or  township, 
as  he  shall  find  necessary  for  the  preservation  of  the  peace  and  good  order  in 
the  same.  After  the  general  assembly  shall  be  organized  the  powers  and  duties 
of  magistrates  and  other  civil  officers  shall  be  regulated  and  defined  by  the  said 
assembly ;  but  all  magistrates  and  other  civil  officers,  not  herein  otherwise  directed, 
shall,  during  the  continuance  of  this  temporary  government,  be  appointed  by  the 
governor. 

Sec.  8.  For  the  ptevention  of  crimes  and  injuries,  the  laws  to  be  adopted 
or  made  shall  have  force  in  all  parts  of  the  district,  and  for  the  execution  of 
process,  criminal  and  civil,  the  governor  shall  make  proper  divisions  thereof; 
and  he  shall  proceed,  from  time  to  time,  as  circumstances  may  require,  to  lay 
out  the  parts  of  the  district  in  which  the  Indian  titles  shall  have  been  extinguished, 
into  counties  and  townships,  subject,  however,  to  siKh  alterations  as  may  there- 
after be  made  by  the  legislature. 

Sec.  9.  So  soon  as  there  shall  he  five  thousand  free  male  inhabitants,  of  full 
age,  in  the  district,  upon  giving  proof  thereof  to  the  governor,  they  shall  receive 
authority,  with  time  and  place,  to  elect  representatives  from  their  counties  or 
townships,  to  represent  them  in  the  general  assembly :  Provided.  That  for  every 
five  hundred  free  male  inhabitants  there  shall  be  one  representative,  and  so  on, 
progressively,  with  the  number  of  free  male  inhabitants,  shall  the  right  of  repre- 
sentation increase,  until  the  number  of  representatives  shall  amount  to  twenty-five; 


'1 


m 

%t 


"3   ;'  :V 


4H 


516         THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

after  which  the  nuinber  and  proportion  of  representatives  shall  be  regulated  by 
the  legislature:  Proiided.  That  no  person  be  eligible  or  qualified  to  act  as  a 
representative,  unless  he  shall  have  been  a  citizen  of  one  of  the  United  States 
three  years,  and  be  a  resident  in  the  district,  or  unless  he  shall  have  resided  in  the 
district  three  years:  and.  in  either  case,  shall  likewise  hold  in  his  own  right,  in 
fee-simple,  two  hundred  acres  of  land  within  the  same:  Prwidcd  also.  That  a 
freehold  in  fifty  acres  of  land  in  the  district,  having  been  a  citizen  of  one  of  the 
States,  and  being  reside.'.^  in  the  district,  or  the  like  freehold  and  two  years 
residence  in  the  district,  shall  be  necessary  to  qualify  a  man  as  an  elector  of  a 

representative.  r  »  ,^ 

•^EC  10  The  representatives  thus  elected  shall  serve  for  the  term  of  two 
vears:  and  in  case  of  the  death  of  a  represemative.  or  removal  from  office,  the 
governor  shall  issue  a  writ  to  the  county  or  township,  for  which  he  was  a  member, 
to  elect  another  in  his  stf  ad,  to  serve  for  the  residue  of  the  term. 

Sec    11      The  general  assembly,  or  legislature,  shall  consist  of  the  governor, 
legislative  council,  and  a  house  of  representatives.    The  legislative  council  shaU 
consist  of  five  members,  to  continue  in  office  five  years,  unless  sooner  removed 
by  Congress:  anv  three  of  whom  to  be  a  quorum;  and  the  members  of  the  council 
shall  be  nominated  and  appointed  in  the  following  manner,  to  wit:     As  soon  as 
representatives  shall  be  elected  the  governor  shall  appoint  a  time  and  place  for 
them  to  meet  together,  and  when  met  they  shall  nominate  ten  persons,  resident 
in  the  district,  and  each  possessed  of  a  freehold  in  five  hundred  acres  of  land 
and  return  their  names  to  Cong.ess.  five  of  whom  Congress  shall  appoint  and 
commission  to  serve  as  aforesaid:  and  whenever  a  vacancy  shall  h..p,>en  m  the 
council,  by  death  or  removal    from  office,  the  house   of   representatives   shall 
nominate  two  persons  qualified  as  aforesaid,  for  each  vacancy,  and  return    heir 
names  to  Congress,  one  of  whom  Congress  shall  appoint  and  commission  for  the 
residue  of  the  term;  and  every  five  years,  four  momhs  at  least  before  the  expira- 
tion of  the  time  of  service  of  the  members  of  the  council,  the  said  house  sha  1 
nominate  ten  persons,  qualified  as  aforesaid,  and  return  their  names  to  Congress 
five  of  whom  Congress  shall  appoint  and  commission  to  serve  as  members  of  the 
council  five  years,  unless  sooner  removed.     And  .be  governor.  '^■R-'"'-'  -""  ;; 
and  house  of  representatives  shall  have  authority  to  make  laws  in  all  case    for 
the  g<K,d  governmem  of  the  district,  not  repugnant  to  the  principles  and  articles 
„  this  ordin.-mce  established  and  declared.     And  all  bills,  having  pa.sed  by  a 
ma      it:  in  the  house,  and  1^  a  m:.jori,y  in  the  council,  shall  be  -f--'  '"  ^^J 
Governor  for  his  assent,  but  no  bill,  or  legislative  act  whatever,  shall  l,e  of  any 
?o  ce  w  thou,  his  assent.     The  governor  shall  have  power  to  convene,  prorogue, 
and  dissolve  .he  general  assembly  when,  in  his  opinion,  it  .shall  be  expedient  _ 

Sec  12  The  governor,  judge,,  legislative  n.unc.l.  secretary,  and  snch  other 
officers'as  Congress  shall  appoint  in  the  district,  shall  take  an  o:Uh  or  affirmation 
o? fidelity,  and  of  office:  the  governor  before  the  fr.s.dent  of  Congress,  and  all 
other  officers  before  the  governor.  As  soon  as  a  legislature  shall  be  f ormed  m 
"he  district,  the  council  and  house  assembled,  in  one  room,  shall  have  authority,  by 


APPENDIX 


517 


joint  ballot,  to  elect  a  delegate  to  Congress,  who  shall  have  a  seat  in  Congress,  with 
a  right  of  debating,  but  not  of  voting,  during  this  temporary  government. 

Sec.  13.  And  for  extending  the  fundamental  principles  of  civil  and  religious 
liberty,  which  form  the  basis  whereon  these  republics,  their  laws  and  constitutions, 
are  erected ;  to  fix  and  establish  those  principles  as  the  basis  of  all  laws,  constitu- 
tions, and  governments,  which  forever  hereafter  shall  be  formed  in  the  said 
territory ;  to  provide,  also,  for  the  establishment  of  States,  and  permanent  govern- 
ment therein,  and  for  their  admission  to  a  share  in  the  Federal  councils  on  an 
equal  footing  with  the  original  States,  at  as  early  periods  as  may  be  consistent  with 
the  general  interest. 

Sec.  14.  It  is  hereby  ordained  and  declared,  by  the  authority  aforesaid, 
that  the  following  articles  shall  be  considered  as  articles  of  compact,  between 
the  original  States  and  the  people  and  States  in  the  said  territory,  and  forever 
remain  unalter.ible,  unless  by  common  consent,  to  wit : 


ARTICLE  I 

No  person,  demeaning  himself  in  a  peaceable  and  orderly  manner,  shall  ever 
be  molested  on  account  of  his  mode  of  worship,  or  religious  sentiments,  in  the 
said  territories. 

ARTICLE  II 

The  inhabitants  of  the  said  territory  shall  always  be  entitled  to  the  benefits  of 
the  writs  of  habeas  corpus,  and  of  the  trial  by  jury :  of  a  proportionate  repre- 
sentation of  the  people  in  the  legislature,  and  of  judicial  proceedings  according  to 
the  course  of  the  common  law.  .Ml  persons  shall  lie  bailable,  unless  for  capital 
oflfenses,  where  the  proof  shall  tn;  evident,  or  the  presumptio.i  great.  All  fines 
shall  !«  moderate;  and  no  cruel  or  unusual  punishment  shall  be  inflicted.  No 
man  shall  bt  deprived  i>f  his  liberty  or  projierty.  but  by  the  judgment  of  his  peers, 
or  the  law  of  the  land,  and  should  the  jniblic  exigencies  make  it  necessary,  for  the 
common  preservation,  to  take  any  person's  property,  or  to  demand  his  particular 
services,  full  comi)ensation  shall  be  made  for  the  same,  .^nd,  in  the  just  preserva- 
tion of  rights  and  jiroperty,  it  is  understood  and  declared,  that  no  law  ought 
ever  to  be  made  or  have  force  in  the  said  territory,  that  shall,  in  any  manner 
whatever,  interfere  with  or  affect  private  contracts,  or  engagements,  bona  Me, 
and  without  fraud  previously  formed.  ■ 

ARTICLE  III 

Religion,  morality,  and  knowledge  being  necessary  to  good  governn  ■  .t  and  the 
happiness  of  mankind,  schools  and  the  means  of  education  .shall  forever  be 
encouraged.  The  utmo.st  good  faith  shall  always  be  observed  towsrds  t!ie 
Indians;  their  lands  and  property  shall  never  be  taken  from  tiiem  wiihoui  their 
consent ;  and  in  their  property,  rights,  and  liberty  they  never  shall  be  invaded  or 
disturbed,  unless  in  just  and  lawful  wars  authorized  by  Congress;  but  laws 


1 


518         THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

founded  in  justice  and  humanity,  shall,  from  time  to  time,  be  made,  for  preventing 
wrongs  being  done  to  them,  and  for  preserving  fieace  and  friendship  with  them. 

ARTICLE  IV 

The  said  territory,  and  the  States  which  may  lie  formed  therein,  shall  forever 
remain  a  part  of  this  confederacy  of  the  United  States  of  America,  subject  to 
the  Articles  of  Confederation,  and  to  such  alterations  therein  as  shall  he  con- 
stitutionally made;  and  to  all  the  acts  and  ordinances  of  the  United  States  in 
Congress  assembled,  conformable  thereto.  The  inhabitants  and  settlers  in  the 
said  territ(try  shall  he  subject  to  pay  a  part  of  the  Federal  debts,  contracted,  or 
to  be  contracted,  and  a  proportional  part  of  the  expenses  of  government  to  be 
apportioned  on  them  by  Congress,  according  to  the  same  common  rule  and 
measure  by  which  apportionments  thereof  shall  be  made  on  the  other  States; 
and  tlie  taxes  for  paying  their  proportion  shall  be  laid  and  levied  by  the  authority 
an.l  direction  of  the  leeislaiures  of  the  district,  or  districts,  or  new  States,  as  in 
the  original  States,  within  the  time  agreed  upon  by  the  United  St.-ites  in  Congress 
assembled.  The  legislatures  of  those  districts,  or  new  St.ites.  shall  never  interfere 
with  the  primary  disp<isal  of  the  soil  by  the  United  States  in  Congress  assembled, 
nor  with  any  regulations  Congress  may  find  necessary  for  securing  the  title  in 
such  soil  to  the  bona  fide  purchasers.  No  tax  shall  Ik  imposed  on  lands  the 
property  of  the  United  States;  and  in  no  case  shall  non-resident  proprietors  be 
taxed  higher  than  residents.  The  navigable  waters  leading  into  the  Mississippi 
and  Saint  Lawrence,  and  the  carrying  places  between  the  same,  shall  be  common 
highways,  and  forever  free,  as  well  to  the  inhabitants  of  the  said  territory  as  to 
the  citizens  of  the  L'nitcd  States,  and  those  of  any  other  States  that  may  be 
admitted  into  the  confederacy,  without  any  tax,  impost,  or  duty  therefor. 

ARTICLE  V 

There  shall  be  formed  in  the  said  territory  not  less  than  three  nor  more  than 
five  States;  and  the  boundaries  of  the  States,  as  soon  as  Virginia  shall  alter  her 
act  of  cession  and  consent  to  the  same,  shall  liecome  fixed  and  established  as 
follows,  to  wit :  The  western  State,  in  the  said  territory,  shall  be  bounded  by  the 
Mississippi,  the  Ohio,  and  the  W'.nhash  Rivers;  a  direct  line  drawn  from  the 
Wabash  and  I'ost  Vincents,  due  north,  to  the  territorial  line  between  the  United 
States  and  Canada ;  and  by  the  said  territorial  line  to  the  Lake  of  the  Woods 
and  Mississippi.  The  middle  State  shall  be  bounded  by  the  said  direct  line,  the 
Wabash  from  I'ost  X'incents  to  the  Ohio,  by  the  Ohio,  by  a  direct  line  drawn 
due  north  from  the  mouth  of  the  Great  Miami  to  the  said  territorial  line,  and 
by  the  said  territorial  line.  The  eastern  State  shall  be  bounded  by  the  last-men- 
tioned direct  line,  the  Ohio.  Pennsylvania,  and  the  said  territorial  line:  Prot'idcd. 
hcKvei'cr,  And  it  is  further  understood  and  declared,  that  the  boundaries  of  these 
three  States  shall  be  subject  so  far  to  be  altered,  that,  if  Congress  shall  hereafter 
find  it  expedient,  they  =ha11  have  authority  to  form  one  or  two  Sta'rs  in  that  part 


APPENDIX 


519 


of  the  said  territory  which  lies  north  of  an  east  and  west  line  drawn  through 
the  southerly  bend  or  extreme  of  Lake  Michigan.  And  whenever  any  of  the 
said  States  shall  have  sixty  thousand  free  inhabitants  therein,  such  State  shall  be 
admitted,  by  its  delegates,  into  the  Congress  of  the  United  States,  on  an  equal 
footing  with  the  original  States,  in  all  respects  whatever;  and  shall  be  at  liberty 
to  form  a  permanent  constitution  and  State  government :  Provided,  The  con- 
stitution and  government,  so  to  be  formed,  shall  .x;  republican,  and  in  conformity 
to  the  principles  contained  in  these  articles,  and  so  far  as  it  can  be  consistent 
with  the  general  interest  of  the  confederacy,  such  admission  shall  be  allowed  at 
an  earlier  period,  and  when  there  may  be  a  less  number  of  free  inhabitants  in  the 
State  than  sixty  thousand. 

ARTICLE  \T 

There  shall  be  neither  slavery  nor  involuntary  servitude  in  the  said  territory, 
otherwise  than  in  the  punishment  of  crimes,  whereof  the  party  shall  have  been 
duly  convicted:  Provided  ahi'ays,  That  any  person  escaping  into  the  same,  from 
whom  labor  or  service  is  lawfully  claimed  in  any  one  of  the  original  Stales,  such 
fugitive  may  be  lawfully  reclaimed,  and  conveyed  to  the  person  claiming  his  or 
her  lalxjr  or  service  as  aforesaid. 

Be  it  ordained  by  the  authority  aforesaid.  That  the  resolutions  of  the  23d 
of  April,  1784,  relative  to  the  subject  of  this  ordinance,  be,  and  the  same  are 
hereby,  reiiealed,  and  declared  null  and  void. 

Done  by  the  L'nited  Stales,  in  Congress  assembled,  the  13th  day  of  July,  in 
the  year  of  our  Lord  1787,  and  of  their  sovereignty  and  independence  the  twelfth. 


m 


'I 


m  ' 


A- 

'it 


I. 


C     DOCUMENTS  FROM  WHICH  THE  CONSTITUTION  WAS 

EVOLVED. 

TEXT  OF  MR    RANDOLPH'S  RESOLUTIONS.  PRESENTED  TO 
THE  CONVENTION  MAY  29.  1787.' 

1.  Resolved  that  the  articles  of  Confederation  ought  to  be  so  corrected  &  en- 
larged as  to  accomplish  the  objects  pro,K,sed  by  their  institution;  namely,  com- 
mon defence,  security  of  liberty  and  general  welfare." 

2  Res^  tiierefore  that  the  rights  of  suffrage  in  the  National  Legislature  ought 
to  be  proportioned  to  the  Quotas  of  contribution,  or  to  the  number  of  free  in- 
habitants, as  the  one  or  the  other  rule  may  seem  best  in  different  cases. 

3  Res*   that  the  National  Legislature  ought  to  consist  of  two  branches. 

4  Res-  that  the  members  of  the  first  branch  of  the  National  Legislature 
ought  to  be  elected  by  the  people  of  the  several  States  every  '°''.*^'= '"/" 
of  ;  to  be  of  the  age  of  years  at  least,  to  receive  liberal  stipends  by 
which  they  may  be  compensated  for  the  devotion  of  their  time  to  public  serv- 
ice- to  be  ineligible  to  any  office  established  by  a  particular  State,  or  under 
the  authoritv  of  the  United  States,  except  those  peculiarly  belonging  to  the  func- 
tions of  the'  first  branch,  during  the  term  of  service,  and  for  the  space  of 
after  its  expiration:  to  be  incapable  of  re-election  for  the  space  of  after 
the  expiration  of  their  term  of  service,  and  to  he  subject  to  recall. 

5  Resol"  tliat  the  members  of  the  second  branch  of  the  National  Legislature 
ought  to  be  elected  by  those  of  the  first,  out  of  a  proper  number  of  persons  nomi- 
nated by  the  individual  Legislatures,  to  he  of  the  age  of  years  at  least ;  to 
hold  their  offices  for  a  term  sufficient  to  ensure  their  independency,  to  receive 
liberal  stipends,  bv  which  they  may  be  compensated  for  the  devotion  of  their  time 
to  the  public  service :  and  to  be  ineligible  to  any  office  established  by  a  particular 
State,  or  under  the  authority  of  the  United  States,  except  those  peculiarly  be- 
longing to  the  functions  of  the  sccon.l  branch,  during  the  term  of  service,  and 
for  the  sp,-ice  of                 after  the  expiration  tlicreof. 

6  Resolved  that  each  branch  ought  to  iwssess  the  right  of  originating  Acts ; 
that  the  National  Legislature  ought  to  be  empowered  to  enjoy  the  Legislative 
Rights  vested  in  Congress  by  the  Confederation  &  moreover  to  legislate  in  all 
cases  to  which  the  separate  States  are  incompetent,  or  in  which  the  harmony  of 
the  I'nited  States  mav  he  interrupted  by  the  exercise  of  individual  Legislation : 
to  negative  all  laws  passed  by  the  several  States,  contravening  in  the  opinion  of 
the  Nritiotial  Legislature  the  articles  of  Union:  and  to  call  forth  the  force  of 
the  Union  ag-.  any  member  of  the  Union  failing  to  fulfill  its  duty  under  the 
articles  thereof. 

«  Documenlary  Hiilory  of  the  CoHStilulinH.  Vol.  iii.  pp.  17-20. 


APPENDIX 


521 


7.  Res*,  that  a  National  Executive  be  instituted;  to  be  chosen  by  the  Na- 
tional Legislature  for  the  term  of  years,  to  receive  punctually  at  stated 
times,  a  fixed  compensation  for  the  services  rendered,  in  which  no  increase  or 
diminution  shall  be  made  so  as  to  affect  the  Magistracy,  existing  at  the  time  of 
increase  or  diminution,  and  to  be  ineligible  a  second  time ;  and  that  besides  a  gen- 
eral authority  to  execute  the  National  laws,  it  ought  to  enjoy  the  Executive  rights 
vested  in  Congress  by  the  Confederation. 

8.  Res'*,  that  the  Executive  and  a  convenient  number  of  the  National  Ju- 
diciary, ought  to  compose  a  Council  of  revision  with  authority  to  examine  every 
act  of  the  National  Legislatur  efore  it  shall  operate,  &  every  act  of  a  particular 
Legislature  before  a  Negative  thereon  shall  be  final ;  and  that  the  dissent  of  the 
said  Council  shall  amount  to  a  rejection,  unless  the  Act  of  the  National  Legis- 
lature be  again  passed,  or  that  of  a  particular  Legislature  be  again  negatived 
by  of  the  members  of  each  branch. 

9.  Res*,  that  a  National  Judiciary  be  established  to  consist  of  one  or  more 
supreme  tribunals,  and  of  inferior  tribunals  to  be  chosen  by  the  National  Legis- 
lature, to  hold  their  offices  during  good  behaviour;  and  to  receive  punctually 
at  stated  times  fixed  compensation  for  their  services,  in  which  no  increase  or 
diminution  shall  be  made  so  as  to  affect  the  persons  actually  in  office  at  the  time 
of  such  increase  or  diminution,  that  the  jurisdiction  of  the  inferior  tribunals 
shall  be  to  hear  &  determine  in  the  first  instance,  and  of  the  supreme  tribunal  to 
hear  and  determine  in  the  dernier  resort  all  piracies.  &  felonies  on  the  high  seas, 
captures  from  an  enemy;  cases  in  which  foreigners  or  citizei^s  of  other  States 
applying  to  such  jurisdictions  may  be  interested,  or  which  respect  the  collection 
of  the  National  revenue;  impeachments  of  any  National  officers,  and  questions 
which  may  involve  the  national  peace  and  harmony. 

10.  Resolv".  that  provision  ought  to  be  made  for  he  admission  of  States  law- 
fully arising  within  the  limits  of  the  United  States,  whether  from  a  vohmtary 
junction  of  Government  &  Territory  or  otherwise,  with  the  consent  of  a  number 
of  voices  in  the  National  legislature  less  than  the  whole. 

11.  Res",  that  a  Republican  Government  &  the  territory  of  each  State,  except 
in  the  instance  of  a  voluntary  junction  of  Government  &  territory,  ought  to  be 
guaranteed  by  the  United  States  to  each  State 

12.  Res",  that  provision  ought  to  be  made  for  the  continuance  of  Congress 
and  their  authorities  and  privileges,  until  a  given  day  after  the  reform  of  the 
articles  of  Union  shall  be  adopted,  and  for  the  completion  of  all  their  engage- 
ments. 

13.  Res",  that  provision  ought  to  be  made  for  the  amendment  of  the  Articles 
of  Union  whensoever  it  shall  seem  necessary,  and  that  the  assent  of  the  National 
Legislature  ought  not  to  be  required  thereto. 

14.  Res",  that  the  Legislative  Executive  &  Judiciary  lowers  w  ithin  the  several 
States  ought  to  be  bound  by  oath  to  support  the  articles  of  Union. 

15.  Res",  that  the  amendments  which  shall  be  offered  to  the  Confederation, 
bv  the  Convention  ought  at  a  proper  time,  or  times,  after  the  approbation  of 


.| 


4 


5i,2         THE   UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 

Congress  to  be  submitted  to  an  assembly  or  assemblies  of  Representatives,  recom- 
mended by  the  several  Legislatures  to  be  expressly  chosen  by  the  people,  to  con- 
sider &  decide  thereon. 

II.    OUTLINE   OF   THE    PIN'CKNEY    PLAN    PRESENTED   TO   THE 
CONVENTION    MAY    29.    1787.« 

1.  A  Confederation  between  the  free  and  independent  States  of  N.  11.  etc.  is 
hereby  solemnly  made  uniting  them  together  under  one  general  superintending 
Government  for  their  common  Benefit  and  for  their  Defense  and  Security  against 
all  Designs  and  Leagues  that  may  be  injurious  to  their  Interests  and  against  all 
Forcfe]  [  ?1  and  Attacks  offered  to  or  made  upon  them  or  any  of  them 

2  The  Stile 

3  Mutual  Intercourse  —  Community  of  Privileges  —  Surrender  of  Criminals 

—  Faith  to  Proceedings  etc. 

4  Two  Rranchcs  of  the  Legislature  — Senate  — House  of  Delegates  —  to- 
gether the  U.  S.  in  Congress  assembled 

H.  D.  to  consist  of  one  Member  for  every  thousand  Inhabitants  i  of  Blacks 

included 

Senate  to  be  elected  from  four  Districts  — to  serve  by  Rotation  of  four 
Years  —  to  be  elected  by  the  H.  D.  either  from  among  themselves  or  the  People 

at  large 

5  The  Senate  and  H.  D.  shall  by  joint  Ballot  annually  [septennially]  chuse  the 
Presid'.  U.  S.  from  amonfj  themselves  or  the  People  at  large.—  In  the  Presd'.  the 
e-xecutive  authority  of  the  U.  S.  shall  be  vested.— His  Powers  and  Ditties  — He 
shrill  have  a  Right  to  advise  with  the  Heads  of  the  different  Departments  as  his 

Council 

6  Council  of  Revision,  consisting  of  the  Presid'.  S.  for  for.  Affairs.  S.  of 
War,  Heads  of  the  Departments  of  Treasury  and  Admiralty  or  any  two  of  them 
tog'  w'  the  Presid'. 

7  The  Members  of  S.  and  H.  D.  shall  each  have  one  Vote,  and  shall  be  paid 
out  of  the  common  Treasury. 

8  Tlie  Time  of  the  Election  of  the  Members  of  the  H.  D.  and  of  the  Meeting 
of  I '.  S   in  C.  assembled. 

9  Xn  State  to  make  Treaties  — lay  interfering  Duties  — keep  a  naval  or  land 
Force  Militia  excepted  to  \te  disciplined  etc  according  to  the  Regulations  of 
the  U.  S. 

>  This  outline  of  tlie  so-called  Pincknfy  plan  laid  before  the  Federal  Convention  on 
Mav  '9  1787  immediatelv  after  that  of  Mr.  Randolph,  was  found  by  Professor  Andrew  C. 
McLa'iRhlin  amoni?  the  VVihon  pnpers  deposited  in  the  Pennsylvania  Historical  Society  and 
identified  by  him  as  in  James  Wilson's  h.niidwritinK.  It  i^  twlieved  to  be  a  summary  made 
hv  Mr  Wilson  either  durini;  the  readinu  of  the  Pinckney  plan  upon  its  introduction,  or  from 
the  original  .Inft  referred  to  the  Committee  of  Detail,  of  wliich  Mr.  Wilson  was  a  mem""- 
For  fuller  particulars  conceminif  (he  draft,  see  J.  Franklm  Jameson,  Studies  m  the  Federal 
Constitution.  .■f.m«n/  Keporl  nf  the  Amrrunn  Histnrical  Associahnn  1902,  Vol  i.pp  130-1. 
I'laii  here  a  reprinted  from  The  Amerkan  Ilistorual  Hem-w.  July,  1«)4,  Vol.  IX,  pp. 
741-747. 


APPENDIX 


523 


10.  Each  State  retains  its  Ri^^hts  not  expressly  delegated  —  But  no  Bill  of 
the  Legislature  of  any  State  shall  become  a  law  till  it  shall  have  been  laid  before 
S.  and  H.  D.  in  C.  assembled  and  received  their  Approbation. 

11.  The  exclusive  Power  of  S.  and  M.  D.  in  C.  assembled 

12.  The  S.  and  H.  D.  in  C.  ass.  shall  have  exclusive  Power  of  regulating  trade 
and  levying  Imposts —  Each  State  may  lay  Embargoes  in  Times  of  Scarcity 

13  of  establishing  Post-Offices 

14.  S.  and  H.  D.  in  C.  ass.  shall  Ik:  the  last  Resort  on  .Appeal  in  Disjniles  be- 
tween two  01  more  States ;  which  Authority  shall  be  exercised  in  the  following 
Manner  etc 

15.  S.  and  H.  D.  in  C.  ass.  shall  institute  offices  and  appoint  officers  for  the  De- 
partments of  for.  Affairs,  War,  Treasury  and  Admiralty. 

They  shall  have  the  exclusive  Power  of  declaring  what  shall  be  Treason  and 
Misp.  of  Treason  ag*.  U.  S. —  and  of  instituting  a  federal  judicial  Court,  to  which 
an  Appeal  shall  be  allowed  from  the  judicial  Courts  of  the  several  States  in  all 
Causes  wherein  Questions  shall  arise  on  the  Construction  of  Treaties  made  by 
I'.  S. —  or  on  the  Laws  of  Nations  —  or  on  the  Regulations  of  L'.  S.  concerning 
Trade  and  Revenue  —  or  wherein  I'.  S.  shall  be  a  Party  —  The  Court  shall  con- 
sist of  Judges  to  be  appointed  during  good  Behaviour  —  S  and  H.  O.  in  C. 
ass.  shall  have  the  exclusive  Right  of  instituting  in  each  State  a  Court  of  Ad- 
miralty, and  appointing  the  Judges  etc  of  the  same  for  all  maritime  Causes  which 
may  arise  therein  respectively 

16.  S  and  H.  D.  in  C.  Ass  shall  have  the  exclusive  Right  of  coining  Money  — 
regulating  its  .Mloy  and  Value — fixing  the  Standard  of  Weights  and  Measures 
throughout  U.  S. 

17.  Points  in  which  the  .Assent  of  more  than  a  bare  Majority  shall  be  necessary. 
18  Impeachments  shall  be  by  the  H.  D,  before  the  Senate  and  the  Judges  of 

the  federal  judicial  Court. 

19.  S.  and  H.  D.  in  C.  ass.  shall  regulate  the  Militia  thro'  the  I'.  S. 

20.  Means  of  enforcing  and  compelling  the  Payment  of  the  Quota  of  each 
State. 

21.  Manner  and  Conditions  of  admitting  new  States. 

22.  Power  of  dividing  annexing  and  consolidating  States,  on  the  Consent  and 
Petition  of  such  States. 

23.  The  assent  of  the  Legislature  of  States  shall  be  sufficient  to  invest 
future  additional  Powers  in  V.  S.  in  C.  ass.  and  shall  bind  the  whole  Confederacy. 

24.  The  Articles  of  Confederation  shall  be  iiiviolalily  observed,  and  the  Union 
shall  be  perpetual :  unless  altered  as  before  directed 

25.  The  said  States  of  X.  H.  etc  guarrantee  mutually  each  other  and  their 
Rights  against  all  other  Powers  and  against  all  Rebellion  etc. 


524         THE   UNITED  STATES:   A   STIOY   IN    INTERNATIONAL  OBCAMZATION 


5.S 


III     REPORT  OF  THE  COMMITTEE  OF  T'.£  WHOLE  ON  MR   RAN- 
DOLPH'S PROPOSITIONS.  JL'NE  13.  1787.' 

1.  Res*,  that  it  i*  the  opinion  of  this  Committee  that  a  National  Govemm' 
ought  to  be  established,  consisting  of  a  supreme  Legislative,  Executive  &  Ju- 
diciary. 

2   Rfsol''.  that  the  National  Lep-slature  ought  to  consist  of  two  branches. 

3.  Res",  that  the  members  of  the  *irst  branch  of  the  National  Legislature  ought 
to  be  elected  by  the  i>eople  of  the  several  States  for  the  tenn  of  three  years,  to 
receive  fixed  StiiK-nds  by  which  they  may  be  compensate<l  for  the  devot'on  of 
their  time  to  public  service,  to  be  paid  out  of  the  National  Treasury:  to  be 
ineligible  to  any  office  established  by  a  particular  State,  or  under  the  authority 
of  the  U.  States,  (except  those  peculiarly  belonging  to  the  functions  of  t'.ie  first 
branch),  during  the  term  of  service,  and  under  the  national  Government  for  tht 
Space  of  ore  year  after  its  expiration. 

4.  Res",  th.it  the  members  of  the  second  branch  of  the  Nat'.  Legislature  ought 
to  be  chosen  by  the  individual  legislatures,  to  be  of  the  age  of  30  years  .it  least. 
to  hold  their  offices  for  a  term  sufficient  to  ensure  their  independency,  namely, 
seven  years,  to  receive  fixed  stipends  by  which  they  may  be  compensated  for  the 
devotion  of  their  time  to  public  service  to  be  paid  out  of  the  National  Treasury : 
to  be  ineligible  to  any  office  established  by  a  particular  State,  or  under  the  au- 
thority of  the  V.  St.ites.  (except  those  peculiarly  belonging  to  the  functions  of 
the  second  branch)  during  the  term  of  service,  and  under  the  Nat'.  Gov',  for  the 
space  of  one  year  after  its  expiration. 

5.  Res",  that  each  branch  ought  to  possess  the  right  of  originating  Acts 

6.  Res",  that  the  Nat'.  Legislature  ought  to  be  emi>owered  to  enjoy  the  Legis- 
lative rights  vested  in  Cong*,  by  the  Confederation,  and  moreover  to  legislate  in 
all  cases  to  which  the  separate  States  are  incompetent :  or  in  which  the  harmony 
of  the  U.  S.  may  be  interrupted  bv  the  exercise  of  individual  legislation;  to 
negative  all  laws  passscd  bv  the  several  States  contravening  in  the  opinion  of  the 
Nation.il  Legislature  the  articles  of  Union,  or  any  treaties  subsisting  under  the 
authority  of  the  I'nion. 

7.  Res",  that  the  rights  of  sufTrace  in  the  1".  branch  of  the  National  Legis- 
lature, nuRbt  not  to  h<-  according  to  the  rule  established  in  the  articles  of  confeder- 
ation but  according  to  some  eiiuit.ible  ratio  of  representation,  namely,  in  pro- 
portion to  the  whole  nunilK-r  of  white  &  other  free  citizens  &  inhabitants,  of  every 
age  sex  and  condition,  including  those  bound  to  servitude  for  a  term  of  years, 
&  three  fifths  of  all  other  persons,  not  comprehended  in  the  foregoing  descrip- 
tion, except  Indians  not  paying  taxes  in  each  State : 

S.  Resolved  that  the  right  of  suffrage  in  the  2".  branch  of  the  National  Legis- 
lature ought  to  be  according  to  the  rule  established  for  the  first. 

9.  Resolved  that  a  National  Executive  be  instituted  to  consist  of  a  single 
person,  to  be  chosen  by  the  Nat'.  legislature  for  the  term  of  seven  years,  with 

>  Dorumentary  Hislnry  of  tht  Conslitutwn.  Vol,  iii,  pp.  120-3. 


APPENDIX 


S25 


power  to  carry  into  execution  the  national  laws,  to  appoint  to  offices  in  case*  not 
otherwise  provided  for  —  to  lie  ineliRibl*-  ;i  second  time,  &  to  be  removeable  on 
imiieai hment  and  conviction  of  malpractiii -^  or  neg'tct  of  duty  —  to  receive  a 
fixed  stiix'nd  by  which  he  may  be  cnnv,)fns;Ufd  for  the  devotion  of  his  time  to 
public  service  to  be  paid  out  of  the  national   I'rca-nry. 

10.  Re»()l''.  that  the  nat'.  Kxecutivc  shall  have  a  right  to  negative  any  legis- 
lative Act,  which  shall  not  Ix-  afterwards  passed  unless  by  two  thirds  of  each 
branch  of  the  National  Legislature. 

11.  Resol**.  that  a  Nat'.  Judiciary  lie  established,  to  consist  of  one  supreme 
tribunal,  the  Judges  of  which  to  Ik-  ap|)ointcd  by  Ihc  2^  branch  of  the  Nat'.  Legis- 
lature, to  hold  their  offices  during  gcKxl  behaviour,  &  to  receive  punctually  at 
stated  times  a  fixed  compen.-ialion  for  their  services,  in  which  no  increase  or 
diminution  shall  be  made,  so  as  to  aflTect  the  persons  actually  in  office  at  the  time 
of  such  increase  or  diminution. 

12  Resol".  that  the  Nat'.  Legislature  be  empowered  to  appoint  inferior 
Tribunals. 

13.  Res*,  that  the  jurisdiction  of  the  Nat'.  Judiciary  shall  extend  to  all  cases 
which  respect  the  collection  of  the  Nat',  revenue,  impeachments  of  any  Nat'. 
Officers,  and  questions  which  involve  the  national  peace  &  harmony. 

14.  Res'*,  that  provision  ought  to  be  made  for  the  admission  of  States  law- 
fully arising  within  the  limits  of  the  U.  States,  whether  from  a  voluntary  junc- 
tion of  Government  &  tirritory  or  otherwise,  with  the  consent  of  a  number  of 
voices  in  the  .Nat'.  LeK\  lature  less  than  the  whole. 

15.  Res*,  that  provision  ought  to  be  made  for  the  continuance  of  Congress 
and  their  authorities  and  privileges  untill  a  given  day  after  the  reform  of  the  arti- 
cles of  L'nion  shall  ')e  adopted  and  for  the  completion  of  all  their  engagements. 

16.  Res*,  that  a  Republican  Constitution  &  its  existing  laws  ought  to  l)e  guar- 
anteed to  each  State  by  the  U.  States. 

17.  Res',  that  provision  ought  to  be  made  for  the  amendment  of  the  Articles 
of  L'nion  whensoever  it  shall  seem  necessary. 

IS.  Res*,  that  the  Legislative,  Executive  &  Judiciary  powers  within  the  sev- 
eral States  ought  to  be  bou.id  by  oath  to  support  the  articles  of  L'nion. 

19.  Res*,  that  the  amendments  which  shall  be  offered  to  the  confederation  by 
the  convention  ought  at  a  prt  .r  time  or  times  after  the  approbation  of  Cong*,  to 
be  submitted  to  an  .Assembly  or  Assemblies  recommended  by  the  several  Legis- 
latures to  be  expressly  chosen  by  the  people  to  consider  and  decide  thereon. 


IV.    TEXT  OF  THE  NEW  JERSEY  PLAN.  MOVED  BY  MR.  PATTER- 
SON JUNE   15.  1787.' 

1.  Res*,  that  the  articles  of  Confederation  ought  to  be  so  revised,  corrected, 
&  enlarged,  as  to  render  the  federal  Constitution  adequate  to  the  exigences  of 
Government.  &  the  preservation  of  the  Union. 

>  /'i)fiimCH'ii''.v  History,  Vol.  in.  rP-  1-5  S. 


0 


526         THE    LNITUI  SIAIKS:   A   STIUV    IN    INTEKNATIONAL  OBCANIZATION 

2  Re»*  that  in  addition  to  the  power*  vested  in  the  U.  State*  in  Congrew. 
by  the  prewnt  existing  article*  of  Confederation,  they  be  authorized  to  i«m  act* 
for  raising  a  revenue,  by  levying  a  duty  or  duties  on  all  goods  or  merchandizes 
of  foreipn  growth  or  manufacture.  importc<l  into  any  part  of  the  U.  Stales,  by 
Stamps  on  paper,  vellum  or  parchment,  and  by  a  |)o»tage  on  all  letters  or  pack- 
ages passing  through  the  genrrnl  ,.ost-Office.  to  1«  applied  to  such  fe.lerol  purpose* 
as  they  shall  deem  projier  &  expedient ;  to  make  rules  &  regulations  for  the  col- 
lection thereof :  ami  the  same  from  time  to  time,  to  alter  &  amend  in  .uch  manner 
as  they  shall  think  projK-r :  to  pass  Acts  for  the  reRulati-m  of  tra.le  &  commerce 
as  well  with  foreign  nations  as  with  each  other:  provided  that  all  punishments, 
fines  forfeitures  &  penalties  to  be  incurred  for  contravening  such  acts  rules  and 
regulations  shall  be  a.ljudged  by  the  Common  law  J.idiciaries  of  the  State  in 
which  any  offense  contrary  to  the  true  intent  &  meaning  of  such  Act*  rules  & 
regulations  shall  have  been  committed  or  ,Hrn'etrated.  with  liberty  of  commencmg 
in  the  first  instance  all  suits  &  prosecutions  for  that  pu.pose  m  the  superior 
Common  law  Judiciary  in  such  Stale,  subject  nevertheless,  for  the  correction  of 
all  errors,  both  in  law  &  fact  in  rendering  judgment,  to  an  appeal  to  the  Judiciary 

of  the  L".  States.  .      ,    u         i 

3.  Res'",  that  whenever  requisitions  shall  be  necessary,  instead  of  the  rule 
for  makinfj  re.|uisitions  mentioned  in  the  articles  of  Confederation,  the  United 
Stales  in  Cong*,  be  authorized  to  make  such  requisitions  in  proportion  to  the 
whole  number  of  while  &  other  free  citizens  &  inhabilams  of  every  age  sex  and 
conditi  vi  including  those  bound  to  servitude  for  a  term  of  years  &  three  fifths 
of  all  ciher  jiersons  not  comprehended  in  the  foregoing  description,  except  In- 
dians not  paving  taxes :  that  if  such  re<|uisitions  be  not  complied  with,  in  the  lime 
sj:  ned  therein,  to  direct  the  collection  thereof  in  the  non  complying  Slates  & 
fur  that  pun^ose  to  devise  and  pass  acts  directing  &  authorizing  the  same ;  pro- 
vided that  none  of  the  powers  hereby  vested  in  the  Vk  Slates  in  Cong",  shall  be 
exercised  without  the  consent  of  at  least  Slates,  and  in  that  proportion  if 
the  number  of  Confederated  Slates  shouhl  hereafter  1*  increased  or  diminished. 

4.  Res*,  that  the  U.  States  in  Cons',  be  authorized  to  elect  a  federal  Executive 
to  consist  of  persons,  to  continue  in  office  for  the  term  of  years,  to 
receive  punciually  at  staled  times  a  fixe<l  compensation  for  their  services,  in  which 
no  increase  nor  diminution  .shall  be  made  so  as  to  afTccl  the  persons  composing 
the  r.xecutive  .it  the  lime  of  such  increase  or  diminution,  to  be  paid  out  of  the 
federal  ireasurv- ;  to  be  incapable  of  holding  any  other  office  or  apiwinlment  dur- 
ing their  time  of  service  and  for  years  thereafter;  to  be  ineligible  a  second 
time.  &  rcmovcable  by  Cong*,  on  application  by  a  majority  of  the  F.xecutives  of 
the  several  Stales :  that  the  Kxecutives  besides  their  general  authority  to  execute 
the  federal  acts  ought  to  apiwint  all  federal  officers  not  otherwise  provided  for. 
&  to  direct  all  military  operations ;  provided  thai  none  of  the  persons  composing 
the  federal  Executive  shall  on  any  occasion  take  command  of  any  troops,  so  as 
personally  to  conduct  any  enterprise  as  General,  or  in  any  other  capacity. 

5.  Kcs*.  llial  a  federal  Judiciary  be  cstaWi'^hed  to  consist  of  a  supreme  Trib- 


APPENDIX 


527 


unal  the  Judfjfs  of  which  to  be  appointed  by  the  Executive,  &  to  hold  their  offices 
during  good  behaviour,  to  receive  punctually  at  stated  times  a  tixe<l  coni(>en<iation 
(or  their  services  in  which  no  increase  nor  diminution  shall  be  made,  so  as  to 
affect  the  persons  actually  in  ofl"".c  at  the  time  of  such  increase  or  diminution: 
that  the  Judiciary  so  established  shall  have  authority  to  hear  &  determine  in  the 
first  instance  on  all  impeachments  of  federal  officers,  &  by  way  of  apjHral  in  the 
dernier  resort  in  all  cases  touching  the  rights  nf  Ambassadors,  in  all  cases  of  cap- 
tures from  an  enemy,  in  all  cases  of  piracies  &  felonies  on  the  high  seas,  in  all 
cases  in  which  foreigners  may  bo  iiU(-re>ted,  in  the  constructiun  of  any  treaty  or 
reaties,  or  which  may  arise  on  any  of  the  Acts  for  regulation  i)f  trade,  or 
tlie  •  i'"-rtt'jn  of  the  federal  Revenue:  that  none  of  the  Judiciary  shall  during  the 
•mam  in  Office  be  capable  of  receive  or  holding  any  other  office  or 
iuiing  their  time  of  service,  or  for  thereafter, 

at  all  Acts  of  the  U.  States  in  C  ong*.  made  by  virtue  &  in  pursuance 
hereby  &  by  the  articles  of  confederation  vested  in  them,  and  all 
' :  &  ratified  under  the  authority  of  the  U.  States  shall  l)e  the  supreme 
:espective  States  so  far  forth  as  those  Acts  or  Treaties  shall  relate  to 
Ml  SUM  St  .tes  or  their  Citizens,  and  that  the  Judiciary  of  the  several  States  shall 
I  •  'i  )iin<'  .hereby  in  their  decision's,  any  thing  in  the  respective  laws  of  the 
i  111  I'i./l  States  to  the  Contrary  notwithstanding:  and  that  if  any  State,  or  any 
'Kj(ly  ut  .  len  in  any  State  shall  oppose  or  prevent  y*.  carrying  into  execution  such 
act'  I'  reaties,  the  federal  Executive  shall  be  authori/ed  to  call  forth  ye  power 
of  the  Confederated  States,  or  so  much  thereof  as  may  be  necessary  to  enforce 
and  compel  an  obedience  to  such  Acts,  or  an  Observance  of  such  Treaties. 

7.  Res',  that  provision  be  made  for  the  admission  of  new  States  into  the 
Union. 

8.  Res*,  that  the  rule  for  naturalization  ought  to  be  the  same  in  every  State. 

9.  Res*,  that  a  Citizen  of  one  State  committing  an  offence  in  another  State  of 
the  Union,  shall  he  deemed  guilty  of  the  same  offence  as  if  it  had  been  cc  .timitted 
by  a  Citizen  of  the  State  in  which  the  offence  was  committed. 


I 

I,- 

n 

» 

1 

I'A 

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'•t 

t 

It 

■  u 

»  t, 
ilie 

f I  ■ 

■i' 


V.    ALEXANDER  HAMILTON'S  SKETCH  OF  A  GOVERNMENT  FOR 
THE  UNITED  STATES,  PRESENTED  JUNE  18,  1787.' 

I  "The  Supreme  Legislative  jiower  of  the  United  States  of  America  to  be 
vested  in  two  (I  'rent  Iwdies  of  men :  the  one  to  be  called  the  .Assembly,  the 
other  the  Senati  Iio  together  shall  form  the  Legislature  of  the  L'nited  States 
with  power  to  pass  all  laws  whatsoever  subject  to  the  Negative  hereafter  men- 
tioned. 

II  The  Assembly  to  consist  of  ])ersons  elected  by  the  people  to  serve   for 

three  years. 

III.  The  Senate  to  consist  of  persons  elected  to  serve  during  good  behaviour; 

^Documentary  History,  Vol.  iii,  pp.  149-151. 


4 

■.it 


M 


528         THE  U.NMTED  STATES:   A  STLDY   IN    INTERNATIONAL  ORGANIZATION 

their  election  to  be  made  by  electors  chosen  for  that  purpose  by  the  people:  in 
order  to  this  the  States  to  b  divided  into  election  districts.  On  the  death  re- 
moval or  resignation  of  any  Senator  his  place  to  be  filled  out  of  the  district  from 

which  he  came. 

I\'.  The  supreme  Executive  authority  of  the  United  States  to  be  vested  in  a 
Govemour  to  be  elected  to  serve  during  good  behaviour  —  the  election  to  be 
made  by  Electors  chosen  by  the  people  in  the  Election  Districts  aforesaid  — 
The  authorities  &  functions  of  the  Executive  to  be  as  follows:  to  have  a  negative 
on  ail  laws  about  to  be  passed,  and  the  execution  of  all  laws  passed,  to  have  the 
direction  of  war  when  authorized  or  begun ;  to  have  with  the  advice  and  appro- 
bation of  the  Senate  the  power  of  making  all  treaties;  to  have  the  sole  appoint- 
ment of  the  heads  or  chief  officers  of  the  departments  of  Finance.  War  and  For- 
eign .\flfairs;  to  have  the  nomination  of  all  other  officers  (Ambassadors  to  for- 
eign Nations  included)  subject  to  the  approbation  or  rejection  of  the  Senate;  to 
have  the  power  of  pardoning  all  offences  except  Treason;  which  he  shall  not 
pardon  without  the  approbation  of  the  Senate. 

V.  On  the  death  resignation  or  removal  of  the  Govemour  his  authonties  to 
be  exercised  bv  the  President  of  the  Senate  till  a  Successor  be  appointed. 

\I  The  Senate  to  have  the  sole  power  of  declaring  war.  the  power  of  ad- 
vising and  approving  all  Treaties,  the  power  of  approving  or  rejecting  all  appoint- 
ments of  ofiticers  except  the  heads  or  chiefs  of  the  departments  of  Finance  War 
and  foreign  affairs. 

VII.  The  supreme  Judicial  authority  to  be  vested  in  Judges  to  hold 
their  offices  during  good  behaviour  with  adequate  and  permanent  salaries.  Ihis 
Court  to  have  original  jurisdiction  in  all  causes  of  capture,  and  an  appellative 
jurisdiction  in  all  causes  in  which  the  revenues  of  the  general  Government  or  the 
citizens  of  foreign  nations  are  concerned. 

VIII.  The  Legislature  of  the  United  States  to  have  power  to  institute  Courts 
in  each  State  for  the  determination  of  all  matters  of  general  concern. 

IX.  The  Govemour  Senators  and  all  officers  of  the  United  States  to  be  liable 
to  impeachment  for  mal-  and  cormpt  conduct ;  and  ujion  conviction  to  be  removed 
from  office.  &  disqualified  for  holding  any  pl..-c  of  trust  or  profit -all  impeach- 
ments to  be  tried  bv  a  Court  to  consist  o'  t!ie  Chief  or  Judge  of  the  Superior 
Court  of  l.aw  of  each  State.  provi<led  such  Judge  shall  hold  his  place  during 
good  behavior,  and  have  a  permanent  salary. 

X  .Mi  laws  of  the  particular  States  contrary  to  the  Constitution  or  laws  of 
the  United  States  to  be  utteriy  void ;  and  the  better  to  prevent  such  laws  being 
passed,  the  Govemour  or  president  of  each  State  shall  be  appointed  by  the  Gen- 
eral Government  and  shall  have  a  negative  uiwn  the  laws  about  to  be  passed  in 
the  State  of  which  he  is  the  Govemour  or  President. 

XI  Xo  Siate  to  have  any  forces  land  or  Naval;  and  the  Militia  of  all  the 
States  to  be  under  the  sole  and  exclusive  direction  of  the  United  States,  the 
officers  of  which  to  be  appointed  and  commissioned  by  them 


APPENDIX 


529 


VI.    MR.    RANDOLrH'S    RESOLUTIONS    AS    REVISED   AND    EN- 
LARGED BY  THE  COWF.NTION  AND  REFERRED  JULY  26.  1787, 
TO  THE  COMMITTEE  OF  DETAIL.' 
Journals, 

June  20.  I.  Resolved,   That   the   government  of   the   United   States 

ouKht  to  consist  of  a  supreme  legislative,  judiciary,  and 
executive. 

June  2L  II.  Resolved.  That  the  legislature  consist  of  two  branches. 

III.  Resolved,  That  the  members  of  the  first  branch  of  the 
legislature  ought  to  be  elected  by  the  people  of  the 
several  states,  for  the  term  of  two  years ;  to  be  paid  out 

June  22.  of  the  publick  treasury ;  to  receive  an  adequate  com-- 

pensation  for  their  services ;  to  be  of  the  age  of  twenty- 
June  23.  five  years  at  least;  to  be  ineligible  and  incapable  of 
holding  any  office  under  the  authority  of  the  United 
States  (except  those  peculiarly  belonging  to  the  func- 
tions of  the  first  branch)  during  the  term  of  service  of 
the  first  branch. 

June  25.  IV.  Resolved,  That  the  members  of  the  second  branch  of  the 

legislature  of  the  United  States  ought  to  be  cho.sen  by 
the  individual  legislatures;  to  be  of  the  age  of  thirty 

Ji'iie  26.  years  at  least :  to  hold  their  offices  for  six  years,  one 

third  to  go  out  biennially;  to  receive  a  compensation 
for  the  devotion  of  their  time  to  the  publick  service ;  to 
be  ineligible  to  and  incapable  of  holding  any  office,  under 
the  authority  of  the  United  States  (except  those  pe- 
culiarly belonging  to  the  functions  of  the  second 
branch)  during  the  term  for  which  they  are  elected, 
and  for  one  year  thereafter. 
V.  Resolved,  That  each  branch  ought  to  possess  the  right  of 
originating  ..cts. 

Postponed  27.         VI.  Resolved.  That  the  national  legislature  ought  to  possess 
the  legislative  rights  vested  in  Congress  by  the  confed- 

July  16.  eration;  and  moreover,  to  legislate  in  all  cases  for  the 

general  interests  of  the  union,  and  also  in  those  to  which 

'uly  17.  the  states  are  separately  incompetent,  or  in  which  the 

harmony  of  the  United  States  may  be  interrupted  by 
the  exercise  of  indivictiial  legislation. 
VII.  Resolved.  That  the  legislative  acts  of  the  United  States, 
made  by  virtue  and  in  pursuance  of  the  articles  of 
union,  and  all  treaties  made  and  ratified  under  the  au- 
tlioiity  of  the  United  States,  shall  be  the  supreme  law 

^Journal,  Acts  and  I'rocti-dmys  of  the  Federal  ConvtHlion,  1819,  pp.  207-^\X 


f 


i'  4 


!•'/ 


530  THE   UNITED  STATES:   A   STUDY   IN    .NTERNAT.ONAU  ORGANIZATION 

Of  the  respective  states,  as  far  as  those  act.  ..v  treaties 
,  ,     ,7  shall  relate  to  the  said  states,  or  their  cit.zens  and  u. 

^»'y  ^^-  habitants:  and  that  the  jud.ciaries  of    he  severa    states 

shall  be  bound  thereby  in  their  decisions,  any  thing  in 
the  respective  laws  of  the  individual  States  to  the  con- 
trary, notwithstanding. 
T  1     ifi  VIII    Resolved.  That  in  the  original  formation  of  the  legisla- 

consist  of  sixty-five  members:  of  which  number 
New  Hampshire  shall  send. . .  .three. 

Massachusetts    eight. 

Rhode  Island   f^''^. 

'Connecticut  ^'^^' 

\  ew  York   «"«• 

..Hw  Jersey  f""'"' 

I'ennsyKania    ^'g*^*- 

Delaware  o"^' 

Maryland   s'"- 

\irginia    '*'"• 

North  Carolina   fi^""- 

South  Carolina    t'^'*-"- 

(korgia   ^'''■'^*^- 

But  as  the  present  situation  of  the  states  may  prob- 
ably alter  in  the  number  of  their  inhabitants,  tlic  legis- 
lature of  the  United  States  shall  be  authorized,  from 
time  to  time,  to  apportion  the  numl)cr  of  representa- 
tives; and  in  ca.se  any  of  the  states  shall  hercalter  he 
divided,  or  enlarged  by  a.hlition  of  territory,  or  any 
two  or  more  states  united,  or  .iny  new  states  create, 
within  the  limits  of  the  United  States,  the  legislature  of 
the  United  States  shall  possess  authority  to  regul.ite  the 
number   of    represemajives,    in   am    of    the    forcgomi,' 
cases,  upon  the  principle  of  their  nnniher  of  mh.-il.f.ant^ 
accordim,'     to     tlie     provisions     hercalter     ni.MUu.ned. 
namely  —  Provided  always  iliai  representation  ouul.t  to 
be  proportwrned  according  to  direct  taxation.     An.l   m 
order  to  a>certain  the  aher.ation  in  the  direct  t.is.tu.n. 
which    mav    he    rcpiired    from    tune    to    time    hv    the 
changes  in  tiu-  relative  circumstances  of  tlie  st.it.- 
IX    Re^^olved.  That  a  census  !«■  taken  within  six  years  troni 
the  first  meeting  of  tlu-  legislature  of  the  Unit.-.l  States, 
an.l  ..nee  within  tlu-  t.  rm  of  everv  ten  vears  afteruards. 
of  all  the  inhabitants  of  the  United  Stales.  ,n  the  niati- 
ner  and  according  to  the  ratio  recommended  by  Co-- 


APPENDIX 


531 


July  26. 


July  21. 


July  18. 
July  21. 

July  18. 


grress  in  th^ir  resolution  of  April  18,  1783 ;  and  that  the 
k'gi-ilaturi-  of  thi  I'nited  States  shall  proportion  the 
direct  ta.xation  accordingly. 
X.  Resolved,  lliat  all  bills  for  raising  or  appropriating  money, 
and  for  fixing  the  salaries  of  the  officers  of  the  govern- 
ment of  the  t'nited  States,  shall  originate  in  the  first 
branch  of  the  legislafare  of  the  United  States,  ^md  shall 
not  lit-  altered  or  amended  by  the  second  branch ;  and 
that  no  money  shall  be  drawn  from  the  publick  treasury, 
but  in  pursuance  of  appropriations  to  be  originated  by 
the  tir>t  branch. 
XI.  Resolved.  That  in  the  second  branch  of  the  legislature  of 
the  L"nited  .States,  each  state  shall  have  an  equal  vote. 
XII.  Resolved,  Tiiat  a  national  executive  be  instituted,  to  con- 
sist of  a  smgle  person  :  t(/  be  chosen  by  the  national  leg- 
islature, for  the  term  of  seven  years ;  to  be  ineligible  a 
second  time  ;  with  (jower  to  carry  into  execution  the  na- 
tional law  s  ;  to  apjxjint  to  offices  in  cases  not  otherwise 
provided  for:  to  be  remo  able  on  impeachment,  and 
conviction  of  mal-practice  oi  neglect  of  duty;  to  receive 
a  fixed  compensation  for  the  devotion  of  his  time  to  the 
publick  service ;  to  be  paid  out  of  the  publick  treasury. 
Resolved,  That  the  national  executive  shall  have  a  right 
to  negative  any  legislative  act,  which  shall  not  be  after- 
wards pas..e(l.  unless  by  two  third  parts  of  each  branch 
of  the  national  legislature 
Resolved,  That  a  national  judiciary  be  cstaMished.  to  con- 
sist of  one  supreme  tribunal,  the  judges  of  which  shall 
be  appointed  by  the  second  branch  of  the  national  legis- 
lature;  to  hold  their  offices  during  L.ood  behaviour;  to 
receive  punctually,  at  stated  times,  a  fixed  compen.sation 
for  their  services,  in  which  no  diminution  shall  be  made, 
so  as  to  affect  the  persons  actually  in  office  at  the  time 
of  such  diminution 
XV.  Resolved,  That  the  national  legislature  be  empowered  to 

appoint  inferior  tribunals. 
X\'I.  Resolved,  That  the  jurisdiction  of  the  national  judiciary 
shall  extend  to  cases  arising  under  laws  passed  by  the 
general  legislature  .  and  to  such  other  questions  as  in- 
volve the  national  peace  and  harmony. 
XVII.  Resolved.  That  provision  ought  to  be  niad(  for  the  ad- 
mission of  states  lawfully  arising  within  the  limits  of 
the  L'nited  States,  whether  from  a  voluntary  junction 
of  government  and   territory,   or  otherwise,   with  the 


XIII. 


XI\^ 


m 


isl 


«^.. 


532         THE   UNITED  STATES!   A    STUDY    IN    IlfTEBNATIONAL  ORGANIZATION 

consent  of  a  number  of  voices  in  the  national  legislature 
less  than  the  whole. 
XVIII.  Resolved,   That  a  republican  form  of  government  shall  be 
guarantied  to  each  state,  and  that  cicli  state  shall  bo 
protected  agamst  foreign  and    loniestick  violence. 
July  23.  XIX.  Resolved,  That  provision  ought  lo  he  made  for  the  amend- 

ment of  the  articles  of  union,  whensoever  il  shall  seem 
necessary. 
XX.  Resolved,   That   the  legislative,  executive,  and   judiciary 
jx)wers,  within  the  several  states,  and  of  the  naiioii.il 
government,  ought  to  be  bound,  by  oath,  to  support  the 
articles  of  union. 
XXI.  Resolved,  That  the  amendments  which  shall  be  offered  to 
the  confederation  by  the  convt-ntion  ought,  at  a  proijer 
time  or  times  after  the  apiirohatlnu  of  Congress,  to  he 
submitted  to  an  assembly  or  asscmbtits  of  rcpri'scnta- 
tives,   recommended  '  y   the  several   Icsjislatures,  to  be 
••xpressly  chosen  by  the  (jcople  to  consider  and  decide 
thereon. 
XXII.  Resolved.  That  the  representation  in  the  second  branch  of 
the  legislature  of  the  I'nited  States  consist  of  two  mem- 
tjer';  from  each  state,  who  shall  vote  {>er  capita. 
July  26.  XXIII.  Resolved,  That  it  be  an  instruction  to  the  committee,  to 

whom  were  referred  the  proceedings  of  the  convention 
for  the  establishment  of  a  national  government,  to  re- 
ceive a  clause  or  clau.ses,  rc?)uiring  certain  qualifications 
of  property  and  citizenship,  in  the  United  States,  for 
the  executive,  the  judiciary,  and  the  members  of  both 
branches  of  the  legislature  of  the  United  States. 


VII.  REPORT  OF  THE  COMMITTEE  OF  DET.Mi.,  AUGUST  6.  1787.' 

"  We  the  people  of  the  States  of  New  Hampshire,  Ma.ssachusetts.  Rhode- l^land 
and  Trovidcnce  IM.int.it.oiw.  Connecticut,  New- York.  Xew-Jersey,  I'ennsylvama, 
Delaware,  Maryland,  Virgmia  Xorth-Carolina.  South-Carolina,  and  Georgia,  do 
ordain,  declare,  and  e^tabl|sh  the  following  Constitution  for  the  i  .overnment  of 
Ourselves  and  our  Posterity. 

.Article  I 

The  stile  of  the  Government  shall  Ix.  "  The  United  States  of  .Jimerica  " 

H 

The  Government  shall  consist  of  supreme  legislative,  executive,  and  judicial 
powers. 

>  Documentary  History,  Vol.  iii,  pp.  444-458. 


APPENDIX 


533 


III 

The  legislative  power  shall  be  vested  in  a  Congress,  to  consist  of  two  separate 
and  distinct  bodies  of  men,  a  House  of  Representatives  and  a  Senate ;  each  of 
which  shall  in  all  cases  have  a  negative  on  the  other.  The  Legislature  shall  meet 
on  the  first  Monday  in  December  every  year. 

IV 

Sect.  1.  The  members  of  the  House  of  Representatives  shall  be  chosen 
every  second  year,  by  the  people  of  the  several  States  comprehended  within  this 
Union.  The  ([ualifications  of  the  electors  shall  be  the  same,  from  time  to  time, 
as  those  of  the  electors  in  the  several  States,  of  the  most  numerous  branch  of  their 
own  legislatures. 

Sect.  2.  Every  member  of  the  House  of  Representatives  shall  be  of  the 
age  of  twenty  five  years  at  least;  shall  have  been  a  citizen  of  the  Uiuted  States 
for  at  least  three  years  before  his  election :  and  shall  be,  at  the  time  of  his  elec- 
tion, a  resident  of  the  State  in  which  he  shall  be  chosen. 

Sect.  3.  The  House  of  Representatives  shall,  at  its  first  formation,  and 
until  the  number  of  citizens  and  inhabitants  shall  be  taken  in  the  manner  herein 
after  described,  consist  of  sixty  five  Members,  of  whom  three  shall  be  chosen  in 
New  Hampshire,  eight  in  Massachusetts,  one  in  Rhode-Island  and  Providence 
Plantations,  five  in  Conmcticut,  six  in  Xew-Vork,  four  in  New-Jersey,  eight  in 
Pennsylvania,  one  in  Delaware,  six  in  Maryland,  ten  in  Virginia,  five  in  North- 
Carolina,  five  in  South-Carolina,  and  three  in  Georgia. 

Sect-  4  As  the  proportions  of  numbers  in  different  States  will  alter  from 
time  to  time ;  as  some  of  the  States  may  hereafter  be  divided ;  as  others  may  be 
enlarged  by  adilition  of  territory ;  as  two  or  more  States  may  be  united ;  as  new 
States  will  he  erected  within  the  limits  of  the  United  States,  the  Legislature  shall, 
in  each  of  these  cases,  regulate  the  number  of  representatives  by  the  number  of 
inhabitants,  accordmg  to  the  provisions  herein  after  made,  at  the  rate  of  one  for 
every  forty  thousand. 

Sect.  5.  .Ml  bills  for  raising  or  appropriating  money,  and  for  fixing  the 
salaries  of  the  officers  of  Government,  shall  originate  in  the  House  of  Repre- 
sentatives, and  shall  not  be  altered  or  amended  by  the  Senate.  No  money  shall 
Ix;  drawn  froni  the  public  Treasury,  hut  in  pursuance  of  appropriations  that  shall 
originate  ni  the  Hon-   of  Representatives. 

Sect.  6.  The  lluuse  of  Representatives  shall  have  the  sole  power  of  im- 
peachment.    It  siiall  choose  its  Speaker  and  other  officers. 

Sect.  7.  \acancies  in  the  House  of  Representatives  shall  be  .supplied  by 
writs  of  election  from  the  executive  authority  of  the  State,  in  the  representation 
from  which  ii  shall  happen. 

V 

Sect.  1.  The  Senate  of  the  I'nitcd  States  shall  !"■  ohc^cn  by  the  Legislatures 
of  the  several  Stati-s.     E.ich  l.c-jishitun-    ii.ill  chti-i    ;        m.  itihers.     X.-uTincies 


n 


'I 


5.U       THE  iNiTFi)  status:  a  stit.y  in  international  organization 

may  be  supplied  by  the  Executive  until  the  next  meeting  of  the  Legislature. 

Each  member  shall  have  one  vote.  .•      i      *. 

Sect  2  The  Senators  shall  be  chosen  for  six  years ;  but  immediately  after 
the  first  election  they  shall  be  divided,  by  lot.  into  three  classes,  as  nearly  as  may 
be  numbere.1  one.  two  and  three.  The  seats  of  the  members  of  the  first  class 
shall  be  vacated  at  the  expiration  of  the  second  year,  of  the  second  class  at  the 
expiration  of  the  fourth  year,  of  the  third  class  at  the  expiration  of  the  sixth 
year  so  that  a  third  part  of  the  members  may  be  chosen  every  second  year. 

Sect  3  Every  member  of  the  Senate  shall  be  of  the  age  of  thirty  years  at 
least-  shall  have  been  a  citizen  in  the  United  States  for  at  least  four  years  before 
his  election;  and  shall  be.  at  the  time  of  his  election,  a  resident  of  the  Sute  for 
which  he  shall  be  chosen. 

Sect.  4.     The  Senate  shall  chuse  its  own  President  and  other  officers. 

VI 

Sect  1  The  times  and  places  and  manner  of  holding  the  elections  of  the 
members  of  each  House  shall  be  prescribed  by  the  Legislature  of  each  State;  but 
their  provisions  concerning  them  may.  at  any  time,  be  altered  by  the  Legislature 
of  the  United  States.  . 

Sect  2.  The  Legislature  of  the  United  States  shall  have  authority  to  estab- 
lish such  uniform  qualifications  of  the  members  of  each  House,  with  regard  to 
property,  as  to  the  said  Legislature  shall  seem  expedient. 

Sect.  3.  In  each  House  a  majority  of  the  members  shall  constitute  a  quorum 
to  do  business ;  but  a  smaller  number  may  adjourn  from  day  to  day. 

Sect.  4.  Each  House  shall  be  the  judge  of  the  elections,  returns  and  quali- 
fications of  its  own  members. 

Sect  5  Freedom  of  speech  and  debate  in  the  Legislature  shall  not  be  im- 
peached or  questional  in  any  Court  or  place  out  of  the  Legislature ;  and  the  mem- 
bers of  each  House  shall,  in  all  cases,  except  treason  felony  and  breach  of  the 
peace,  be  privileged  from  arrest  during  their  attendance  at  Congress,  and  in  going 
to  and  returning  from  it. 

Sect.  6  Each  1  louse  may  determine  the  rules  of  its  proceedings  ;  may  punish 
its  memlicrs  for  disorderly  behaviour;  and  may  exix-l  a  member. 

SicT  7.  The  House  (if  Representatives,  and  the  Senate,  when  it  shall  be 
acting  in  a  legislative  capacity,  shall  keep  a  Journal  of  their  pr<H:eedings,  and  shall, 
from  tmu'  to  time,  publish  them :  and  the  yeas  and  nays  of  the  members  of  each 
Huuse,  on  any  ciuesiion,  shall  at  the  desire  of  one-fifth  part  of  the  members 
present,  lu  entered  on  the  journal. 

Slot.  8  .Wither  House,  without  the  consent  of  the  other,  shall  adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that  at  which  the  two  Hou.ses 
are  sittiiij;.  Uut  thi.  regulation  shall  nut  exten.l  to  the  Senate,  when  it  shall 
exerci-e  the  powers  nienticmed  in  the  article. 

Mat  9  The  members  of  each  House  shall  he  ineligible  to,  and  incapable  of 
holditit,'  am  oftice  inuler  tlie  authority  of  the  United  States,  dnriiiK  the  time  for 


APPENDIX 


535 


which  they  shall  respectively  be  elected :  and  the  members  of  the  Senate  shall  be 
ineligible  to,  and  incapable  of  holding  any  such  office  for  one  year  afterwards. 

Sect.  10.  The  members  of  each  House  shall  receive  a  compensation  for 
their  services,  to  be  ascertained  and  paid  by  the  State,  in  which  they  shall  be 
chosen. 

Sect.  11.  The  enacting  stile  of  the  laws  of  the  United  States  shall  be,  "  Be 
it  enacted  by  the  Senate  and  Rq)resentatives  in  Congress  assembled." 

Sect.  12.  I£ach  House  shall  possess  the  right  of  originating  bills,  except  in 
the  cases  beforenientioned. 

Sect.  13.  Kvery  bill,  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  l)ecome  a  law,  be  presented  to  the  President  of 
the  United  States  for  his  revision:  if,  upon  such  revision,  he  approve  of  it,  he 
shall  signify  his  approbation  by  signing  it:  But  if,  upon  such  revision,  it  shall 
appear  to  hini  improper  for  being  passed  into  a  law,  he  shall  return  it,  together 
with  his  objections  against  it,  to  that  House  in  which  it  shall  have  originated,  who 
shall  enter  the  objections  at  large  on  their  journal  and  proceed  to  reconsider  the 
bill.  But  if  after  such  reconsideration,  two  thirds  of  that  House  shall,  notwith- 
standing the  objections  of  the  President,  agree  to  pass  it,  it  shall  together  with  his 
objections,  be  sent  to  the  otiier  House,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two  thirds  of  the  other  House  also,  it  shall  become  a  law. 
But  in  all  such  cases,  the  votes  of  both  Houses  shall  be  determined  by  yeas  and 
nays ;  and  the  names  of  the  persons  voting  for  or  against  the  bill  shall  be  entered 
on  the  journal  of  each  House  respectively.  If  any  bill  shall  not  be  returntd  by 
the  President  within  seven  days  after  it  shall  have  been  presented  to  him,  it  shall 
be  a  law,  unless  the  legislature  by  their  adjournment,  prevent  its  return ;  in  which 
case  it  shall  be  a  law. 


VII 

Sect.  1.  The  Legislature  of  the  United  States  shall  have  the  power  to  lay 
and  collect  taxes,  duties,  imposts  and  excises : 

To  regulate  commerce  with  foreign  nations,  and  among  the  -several  States ; 

To  establish  an  uniform  rule  of  naturalization  throughout  the  United  States; 

To  coin  money  : 

To  regulate  the  value  of  foreign  coin ; 

To  fix  the  standard  of  weights  and  measures. 

To  establish  I'ost-ofiices, 

To  borrow  money,  ami  emit  bills  on  the  credit  of  the  United  Scates; 

To  appoint  a  Treasurer  by  ballot : 

To  constitute  tribunals  inferior  to  the  Supreme  Court ; 

To  make  rules  concerning  captures  on  land  and  water; 

To  declare  the  law  and  punishment  of  jiiracies  a.ul  f^'loiiies  committed  on  the 
high  seas,  and  the  punishment  of  counterfeiting  tho  coin  of  tl;e  L  iiit:  '  >utes, 
and  of  ofTences  against  the  law  of  nations ; 

To  subdue  a  rebellion  in  any  State,  on  the  applicalimi  of  its  K'jjisl.itiire  ; 


ffjT 


WE 


■.^■.y^-..r 


536         THE   UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  OBGANUATION 


9ii 


I'o  make  war ; 

To  raise  armies ; 

To  build  and  equip  fleets ; 

To  call  forth  the  aid  of  the  militia,  in  order  to  execute  the  laws  of  the  Union, 
enforce  treaties,  suppress  insurrections,  and  repel  invasions; 

And  to  make  all  laws  that  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested,  by  this  Constitution, 
in  the  government  of  the  United  States,  or  in  any  department  or  oflficer  thereof ; 

Sect.  2.  Treason  against  the  United  States  shall  consist  only  in  levying  war 
against  the  United  States,  or  any  of  them :  and  in  adhering  to  the  enemies  of  the 
United  St.ites,  or  any  of  them.  The  Legislature  of  the  United  States  shall  have 
power  to  declare  the  punishment  of  treason.  No  person  shall  be  convicted  of 
treason,  unless  on  the  testimony  of  two  witnesses.  No  attainder  of  treason  shall 
work  corruption  of  bloods  nor  forfeiture,  except  during  the  life  of  the  person 
attainted. 

Sfxt.  3.  The  proportions  of  direct  taxation  shall  be  regulated  by  the  whole 
number  of  white  and  other  free  citizens  and  inhabitants,  of  every  age,  sex  and 
condition,  including  those  bound  to  servitude  for  a  term  of  years,  and  three  fifths 
of  all  other  jiersons  not  comprehended  in  the  foregoing  description,  (except 
Indians  not  paying  taxes)  which  number  shall,  within  six  years  after  the  first 
meeting  of  the  Legislature,  and  within  the  term  of  every  ten  years  afterwards, 
be  taken  in  such  manner  as  the  said  Legislature  shall  direct. 

Sect.  4.  No  tax  or  duty  shall  be  laid  by  the  Legislature  on  articles  exported 
from  any  State ;  nor  on  the  migration  or  importation  of  such  persons  as  the  sev- 
eral States  shall  think  proper  to  admit ;  nor  shall  such  migration  or  importation  be 
prohibited. 

Skct.  5.  No  capitation  tax  shall  be  laid,  unless  in  proportion  to  the  Census 
hereinl>efore  directed  to  be  taken. 

Sect.  6.  No  navigation  act  shall  be  passed  without  the  assent  of  two  thirds 
of  the  members  present  in  each  House. 

Sect.  7.     The  United  States  shall  not  grant  any  title  of  Nobility. 


VIII 
The  acts  of  the  Legislature  of  the  United  States  made  in  pursuance  of  this 
Constitution,  and  all  treaties  made  under  the  authority  of  the  United  States  shall 
be  the  supreme  law  of  the  M-ver,il  States,  and  of  i\wiT  citizens  an*l  inhabitants  ;  ami 
the  judges  in  the  several  States  shall  l>e  i*Hin<i  thereby  in  their  decisions;  any 
thing  in  the  Constitution  or  laws  of  the  several  States  to  the  contrar>-  notwith- 
standing. 

IX 

Srct.   1      The  Senate  of  the  United  States  shall  have  power  to  make  treaties, 
and  u>  apjioint  .Xnibassadors.  and  Judges  of  the  Supreme  Court. 

Si  (1.  2      in  all  disputes  and  controverstcs  now  subsisting,  or  that  lu.iy  here- 


APPENDIX 


537 


■  Iter  bubs'st  between  two  or  more  States,  respecting  jurisdiction  or  territor)-,  the 
Senate  shall  possess  the  following  |)owers.  Whenever  the  Legislature,  or  the 
l.xpcutive  authority,  or  lawful  Agent  of  any  State,  -n  controversy  with  another, 
shrill  by  mrmorial  to  the  Senate,  state  the  matter  in  question,  and  apply  for  a 
hcarmg;  notice  of  such  memorial  and  application  shall  be  given  by  order  of  the 
Senate,  to  the  Legislature  or  the  Executive  authority  of  the  other  State  in  Con- 
troversy. The  Senate  shall  also  assign  a  day  for  the  appearance  of  the  parties, 
by  their  agents,  before  the  House.  The  Agents  shall  be  directed  to  appoint,  by 
joint  cfisent.  commissioners  or  judges  to  constitute  a  Court  for  hearing  and  de- 
termining the  matter  in  question.  But  if  the  Agents  cannot  agree,  the  Senate 
shall  name  three  persons  out  of  each  of  the  several  States ;  and  from  the  list  of 
such  persons  each  i)arty  shall  alternately  strike  out  one,  until  the  number  shall  be 
reduced  to  thirteen ;  and  from  that  number  not  less  than  seven  nor  more  than  nine 
names,  as  the  Senate  shall  direct,  shall  in  their  presence,  be  drawn  out  by  lot ; 
and  the  persons  whose  names  shall  be  so  drawn,  or  any  five  of  them  shall  be  com- 
missioners or  Judges  to  hear  and  finally  determine  the  controversy :  provided  a 
majority  of  the  Judges,  who  shall  hear  the  cause,  agree  in  the  determination.  If 
either  party  shall  neglect  to  attend  at  the  day  assigned,  without  shewing  sufficient 
reasons  for  not  attending,  or  being  present  shall  refuse  to  strike,  the  Senate  shall 
proceed  to  notuinaie  three  persons  out  of  each  State,  and  the  Clerk  of  the  Senate 
shall  strike  in  beh.ilf  of  the  party  absent  or  refusing.  If  any  of  the  parties  shall 
refuse  to  submit  to  the  authority  of  such  Court ;  or  shall  not  appear  to  prosecute 
or  defend  their  claim  or  cause,  the  Court  sh.ill  nevertheless  proceed  to  pronounce 
judgment.  The  judgment  shall  be  final  and  conclusive.  The  proceedings  shall 
be  transmitted  to  the  I'resident  of  the  Senate,  and  shall  be  lodged  among  the 
public  records,  for  the  security  of  the  parties  concerned.  Every  Commissioner 
shall,  before  he  sit  in  juilgment,  take  an  oath,  to  be  administered  by  one  of  the 
Judges  of  the  Supreme  or  Superior  Court  of  the  St.ite  where  the  cause  shall  be 
tried,  "  well  and  truly  to  hear  and  determine  the  matter  in  question  according  to 
the  best  of  his  judgment,  without  favor,  affection,  or  hope  of  reward." 

Sf.ct.  3.  All  controversies  concerning  lands  claimed  under  different  grants 
of  two  or  more  States,  whose  jurisdictions,  as  they  respect  such  lands  shall  have 
been  decided  or  adjusted  subsequent  to  such  grants,  or  any  of  them,  shall,  on 
application  to  the  Senate,  be  finally  determined,  as  near  as  may  be,  in  the  same 
manner  as  is  before  prescribed  for  deciding  controversies  between  different  States. 


.i 


*J 


■ft' 


Sect.  1.  The  Executive  Power  of  the  United  States  shall  be  vested  in  a 
single  person.  His  stile  shall  be,  "  The  President  of  the  United  States  of  .Amer- 
ica ;  "  and  his  title  shall  be,  "  His  E.xcellcncy."  He  shall  be  elected  by  ballot  by 
the  Legislature.  He  shall  hold  his  office  during  the  term  of  seven  years ;  but  shall 
not  be  elected  a  second  time. 

Sect.  2.  He  shall,  from  time  to  time,  give  information  to  the  Legislature,  of 
the  state  of  the  I'nion :  he  may  recommend  to  their  consideration  such  measures 
as  he  shall  judge  necessary,  and  expedient :  he  may  convene  them  on  extraordi- 


4 


.,«|||, 


538         THE   UNITED  STATES:   A   STVOY   IN    IKTKKNATIONAU  OICANIZATIOM 

nary  occasions.  In  caw  of  disag«em«nt  between  the  two  Houses.  w5th  regard 
to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as  h*  »hmks 
proper:  he  sh.-ill  take  care  that  the  laws  of  the  United  States  be  duly  «"<!  «»'♦'- 
fullVexecuted :  he  shall  commission  all  the  officers  of  the  United  States;  and  shall 
an,«.int  officers  in  all  cases  not  otherwise  provided  for  by  this  Constitution.  He 
shall  receive  Ambassadors,  and  imy  correspond  with  the  supreme  Executives  of 
the  several  States.  I  Ic  shall  have  power  to  g^ant  reprieves  and  pardons ;  but  his 
pardon  shall  not  be  pleadable  in  bar  of  an  imi.eachmer.t.  Me  shall  be  commander 
in  chief  of  the  Arniv  an.l  Navy  of  the  United  Slates,  and  of  the  M.litia  of  the 
Scver.ll  States.  He  sh.ill.  at  state.l  times,  receive  for  his  services,  a  compensation, 
which  shall  neither  be  incre.-ise.l  .lor  diminished  during  his  continuance  in  ottice. 
Before  he  shall  enter  on  the  duties  of  his  department,  he  shall  take  the    oUowing 

oath  or  affirmation,  "I  solemnly  swear,  (or  affirm)  that  I^' '/='f  "'>y 

execute  the  office  of  President  of  the  United  States  of  America.  He  shall  be 
removed  from  his  office  on  impeachment  by  the  House  of  RepresenUtives.  and 
conviction  in  the  suj.reme  Court,  of  treason,  bril^^ry.  or  corruption.  In  case  of 
his  removal  as  aforesaid,  death,  resignation,  or  disability  to  discharge  the  powers 
and  duties  of  his  office,  the  President  of  the  Senate  shall  exercise  those  powers 
an.l  lufies.  until  another  President  of  the  United  Sutes  be  chosen,  or  until  the 
disability  of  the  President  be  removed. 

XI 

Sect  1  The  Judicial  Power  of  the  United  States  shall  be  vested  in  or»e 
Supreme  Court,  and  in  such  inferior  Courts  as  shall,  when  necessary,  from  time 
to  time,  be  constituted  by  the  Legislature  of  the  United  States. 

Skct  2  Ihe  Judges  of  the  Supreme  Court,  and  of  the  Inferior  Courts,  shall 
hold  their  offices  .luring  goo.l  l>ehaviour.  They  shall,  at  stated  times,  receive  for 
their  services,  a  conijKnsation,  which  shall  not  be  diminished  dunng  their  con- 
tinuance in  office.  .  .      n 

Sect    3     The  Jurisdiction  of  the  Supreme  Court  shall  extend  to  all  cases 
ar.Mng  under  laws  passe.l  bv  the  Legislature  of  the  United  States:  to  all  cases 
affecting  Ambassadors,  other  Public  Ministers  and  Consuls:  to  the  trial  of  im- 
peachments of  Officers  of  the  United  States:  to  all  cases  of  AdmiraUy  and  man- 
time  jurisdiction;  to  controversies  between  two  or  more  States,  (except  such  as 
shall  regard  Territory  or  Jurisdiction)  between  a  State  and  Citizens  of  anottier 
State   between  Citizens  of  different  States,  and  tetween  a  State  or  the  Citizens 
thereof  an.l  foreign  States,  citizens  or  subjects.     In  cases  of  impeachment,  cases 
alTecling  Ambassadors,  other  Public  Ministers  and  Consuls,  and  those  in  which  a 
State  shall  be  party,  thi^  jurisdiction  shall  be  original.     In  all  the  other  cases 
before  mentioned,  it  shall  be  appellate,  with  such  exceptions  and  under  such  regu- 
lations as  the  Legi-hture  shall  make.     The  Legislature  may  assign  any  part  of 
the  jurisdiction  above  mentioned  (except  the  trial  of  the  President  of  the  Lnited 
Slates)  in  the  manner,  and  under  the  limitations  which  it  shall  think  proper,  to 
such  Inferior  Courts,  as  it  shall  constitute  from  time  to  time. 


*PP1NDIX 


539 


Sect.  4.  The  trial  o(  all  criminal  oflfencfi  (except  in  cases  of  impeachments) 
■hall  be  in  the  State  where  they  shall  be  committe<l ;  and  shall  be  by  Jury. 

Sect.  5.  Judgment,  in  cases  of  Impeachment,  «hall  not  extend  further  than 
to  rcnuivfil  from  Office,  and  dis<)ualification  to  hold  and  enjoy  any  office  of 
honour,  trust  or  profit,  under  the  United  States.  But  the  party  convicted  shall, 
nevertheless  be  liable  and  subject  to  indictment,  trial,  judgment  and  punishment 
accordmg  to  law. 

XII 

No  State  shall  coin  money ;  nor  grant  letters  of  marque  and  reprisal ;  nor  enter 
into  any  treaty,  alliance,  or  confederation ;  nor  grant  any  title  of  Nobility. 

XIII 

No  State,  without  the  consent  of  the  Legislature  of  the  United  States,  shall 
emit  bills  of  credit,  or  make  any  thing  but  specie  a  tender  in  payment  of  debts ; 
nor  lay  imposts  or  duties  on  imports;  not  keep  troops  or  ships  of  war  in  time 
of  peace ;  nor  enter  into  any  agreement  or  compact  with  another  State,  or  with 
any  'foreign  power ;  nor  eng.^j;c  in  any  war.  unless  it  shall  be  actually  invaded  by 
enemies,  or  the  danger  of  invasion  be  so  imminent,  as  not  to  admit  of  delay, 
until  the  Legislature  of  the  United  States  can  be  consulted. 

XIV 

The  Citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  States. 

XV 

Any  person  charged  with  treason,  felony  or  high  misdemeanor  in  any  State, 
who  shall  flee  from  justice,  and  shall  be  found  in  any  other  State,  shall,  on  demand 
of  the  Executive  |)ower  of  the  State  from  which  ho  tied,  be  delivered  up  and 
removed  to  the  State  having  jurisdiction  of  the  offence. 

XVI 

Full  faith  shall  be  given  in  each  State  to  the  acts  of  the  LcRislatures.  and  to 
the  records  and  judicial  prot^eedings  of  the  Courts  and  Magistrates  of  every  other 

State. 

XVII 

New  States  lawfully  constituted  or  established  within  the  limits  of  the  I'nited 
States  may  be  admitted,  by  the  Legislature,  into  this  Government .  but  to  such  ad- 
mission the  consent  of  two  thirds  of  the  meml)ers  iircsent  in  each  House  shall  Uo 
necessary.  If  a  new  State  shall  arise  within  the  limits  of  any  of  tlic  present 
States,  the  consent  of  the  Lcgisl.itures  of  such  States  shall  be  also  neccssan-  to 
its  admission.  If  the  admission  be  consented  to.  the  new  States  shall  l)e  admitted 
on  tiie  same  terms  with  the  original  States.  Rut  tlie  I.e^islafure  may  make  con- 
ditions with  the  new  States,  concerning  the  public  debt  which  shall  be  then  sub- 
sisting. 


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540  THE  UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

XVIII 

The  United  States  shall  guaranty  to  each  S*ate  a  Republican  form  of  Gov- 
ernment ;  and  shall  protect  each  State  against  foreign  invasions,  and,  on  the  appli- 
cation of  its  Legislature,  against  domestic  violence. 

XIX 
On  the  application  of  the  Legislatures  of  two  thirds  of  the  States  in  the  Union, 
for  an  amendment  of  this  Constitution,  the  Legislature  of  the  United  States  shall 
call  a  Convention  for  that  purpose. 

XX 

The  members  of  the  Legislatures,  and  the  Executive  and  Judicial  officers  of 
the  United  States,  and  of  the  several  States,  shall  be  bound  by  oath  to  support 

this  Constitution. 

XXI 

The  ratification  of  the  Conventions  of  States  shall  be  sufficient  for  organ- 

izing this  Constitution. 

XXII 

This  Constitution  shall  be  laid  before  the  United  States  in  Congress  assem- 
bled, for  their  approbation ;  and  it  is  the  opinion  of  this  Convention,  that  it  should 
be  afterwards  submitted  to  a  Convention  chosen,  under  the  recommendation  of 
its  legislature,  in  order  to  receive  the  ratification  of  such  Convention. 

XXIII 
To  introduce  this  government,  it  is  the  opinion  of  this  Convention,  that  each 
assenting  Convention  should  notify  its  assent  and  ratification  to  the  United  States 
in  Congress  assembled;  that  Congress,  after  receiving  the  assent  and  ratification 
of  the  Conventions  of  States,  should  appoint  and  publish  a  day,  as  early  as 

may  be,  and  appoint  a  place,  for  commencing  proceedings  under  this  Constitu- 
tion ;  that  after  such  publication,  the  Legislatures  of  the  several  States  should 
elect  members  of  the  Senate,  and  direct  the  election  of  members  of  the  House  of 
Representatives;  and  that  the  members  of  the  Legislature  should  meet  at  the 
time  and  place  assigned  by  Congress,  and  should,  as  soon  as  may  be,  after  their 
meeting,  choose  the  President  of  the  United  States,  and  proceed  to  execute  this 
Constitution." 


APPENDIX 


541 


VIII.    PROCEEDINGS  OF  CONVENTION  REFERRED  TO  THE  COM- 
MITTEE OF  STYLE  AND  ARRANGEMENT,  SEPTEMBER  10.  1787." 

We  the  People  of  the  States  of  New-Hampshire,  Massachusetts.  Rhode-Island 
and  Providence  Plantations,  Connecticiit,  New- York,  New-Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia.  North-Carolina,  South-Carolina,  and  Georgia,  do 
ordain,  declare  and  establish  the  following  Constitution  for  the  Government  of 
Ourselves  and  our  Posterity. 

Article  I 
The  stile  of  this  Government  shall  be,  "  The  United  State:-  of  America." 


11 

The  Government  shall  consist  of  supreme  legislative,  executive  and  judicial 
powers. 

Ill 

The  legislative  power  shall  be  vested  in  a  Congress,  to  consist  of  two  separate 
and  distinct  bodies  of  men.  a  House  of  Representatives,  and  a  Senate.  The  Legis- 
lature shall  meet  at  least  once  in  every  year,  and  such  meeting  shall  be  on  the  first 
Monday  in  December  unless  a  diflferent  day  shall  be  appointed  by  law. 

IV 

Sect.  1.  The  Members  of  the  House  of  Representatives  sh'll  be  chosen  every 
second  year,  by  the  people  of  the  several  states  comprehended  within  this  Union. 
The  qualifications  of  the  electors  shall  be  the  same,  from  time  to  time,  as  those  of 
the  electors  in  the  several  States,  of  the  most  numerous  branch  of  their  own  leg- 
islatures. 

Sect.  2.  Every  Member  of  the  Hou.se  of  Representatives  shall  be  of  the  age 
of  twenty-five  years  at  least ;  shall  have  been  a  citizen  of  the  United  States  for  at 
least  seven  years  before  his  election :  and  shall  be,  at  the  time  of  his  election,  an 
inhabitant  of  the  State  in  which  he  shall  be  chosen. 

Sect.  3.  The  House  of  Representatives  shall,  at  its  first  formation  and  until 
the  number  of  citizens  and  inhabitants  shall  be  taken  in  the  manner  herein  after 
described,  consist  of  sixty-five  members,  of  wliom  three  shall  be  chosen  in  New- 
Hampshire,  eight  in  Massachusetts,  one  in  Rhode-Island  and  Providence  Planta- 
tions, five  in  Connecticut,  six  in  New-York,  four  in  New-Jersey,  eight  in  Pennsyl- 

» Compiled  by  Professor  Farrand  and  with  his  perniission  reprinted  from  Farrand,  The 
Records  of  the  Federal  Contention,  vol.  ii,  pp.  565-579. 


I 

4 


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542  THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 

vania,  one  in  Delaware,  six  in  Maryland,  ten  in  Virgfnia,  five  in  North-Carolina, 
five  in  South-Carolina,  and  three  in  Georgia. 

Sect.  4.  As  the  proportions  of  numbers  in  the  different  states  will  alter  from 
time  to  time ;  as  some  of  the  States  may  hereafter  be  divided ;  as  others  may  be 
enlarged  hy  addition  of  territory ;  as  two  or  more  States  may  be  united ;  as  new 
States  will  be  -rected  within  the  limits  of  the  United  States,  the  Legislature  shall, 
in  each  of  these  cases,  regulate  the  number  of  representatives  by  the  number  of  in- 
habitants, according  to  the  rule  hereinafter  made  for  direct  taxation  not  exceeding 
the  rate  of  one  for  every  fony  thousand.  Provided  that  every  State  shall  have  at 
least  one  representative. 

Sect.  6.'  The  House  of  Representatives  shall  have  the  sole  power  of  im- 
peachment.    It  shall  choose  its  Speaker  and  other  officers. 

Sect.  7.  Vacancies  in  the  House  of  Representatives  shall  be  supplied  by  writs 
of  election  from  the  executive  authority  of  the  State,  in  the  representation  irom 
which  they  shall  happen. 


Sect.  1.  The  Senate  of  the  United  States  shall  be  chosen  by  the  Legislatures 
of  the  several  States.  Each  Legislature  shall  chuse  two  members.  Vacancies 
happening  by  refusals  to  accept,  resignations  or  otherwise  may  be  supplied  by  the 
Legislature  of  the  State  in  the  representation  of  which  such  vacancies  shall  hap- 
pen, or  by  the  executive  thereof  until  the  next  meeting  of  the  Legislature.  Each 
member  shall  have  one  vote. 

Sect.  2.  The  Senators  shall  be  chosen  for  six  years;  but  immediately  after 
they  shall  be  assembled  in  consequence  of  the  first  election  they  shall  be  divided, 
by  lot,  into  three  classes,  as  nearly  as  may  lie,  numbered  one,  two  and  three.  The 
seats  of  the  members  of  the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year,  of  the  second  class  at  the  expiration  of  the  fourth  year,  of  the  third 
class  at  the  expiration  of  the  sixth  year,  so  that  a  third  part  of  the  members  may  be 
chosen  every  second  year. 

Sect.  3.  Every  member  of  the  Senate  shall  be  of  the  age  of  thirty  years  at 
least ;  shall  have  been  a  citizen  of  the  United  States  for  at  least  nine  years  before 
his  election ;  and  shall  be,  at  the  time  of  his  election,  an  inhabitant  of  the  State  for 
which  he  shall  be  chosen. 

Sect.  4.     The  Senate  shall  chuse  its  own  President  and  other  officers. 


VI 

Sect.  1.  The  times  and  places  and  the  manner  of  holding  the  elections  of  the 
members  of  each  House  shall  be  prescribed  by  the  Legislature  of  each  State  re- 
spectively ;  but  re^'uiations  in  each  of  the  forcijoing  cases  may,  at  any  time,  be  made 
or  altered  by  the  Legislature  of  the  I'ni'ed  States. 

Sect.  3.-     In  each  House  a  majority  of  the  members  shall  constitute  a  quorum 


1  Sect,  ."i  was  struck  out. 
'  Sect   2  was  struck  o"t. 


APPENDIX  543 

to  do  business;  but  a  smaller  number  may  adjourn  from  day  to  day,  and  may  be 
autliorised  to  compel  the  attendance  of  absent  members  in  such  manner  and  under 
such  penalties  as  each  House  may  provide. 

Sect.  4.  Each  House  shall  be  the  judge  of  the  elections,  returns  and  qualifica- 
tions of  its  own  members. 

Sect.  5.  Freedom  of  speech  and  debate  in  the  Legislature  shall  not  be  im- 
peached or  questioned  in  any  court  or  place  out  of  the  Legislature ;  and  the  mem- 
bers of  each  House  shall,  in  all  cases,  except  treason,  felony  and  breach  of  the 
peace,  be  privileged  from  arrest  during  their  attendance  at  Congress,  and  in 
going  to  and  returning  from  it. 

Sect.  6.  Each  House  may  determine  the  rules  of  its  proceedings ;  may  punish 
its  members  for  disorderly  behaviour;  and  may,  with  the  concurrence  of  two 
thirds,  expel  a  member. 

Sect.  7.  The  House  of  Representatives,  and  the  Senate,  shall  keep  a  journal 
of  their  proceedings,  and  shall,  from  time  to  time,  publish  them,  except  such  paits 
thereof  as  in  their  judgment  require  secrecy;  anJ  the  yeas  and  nays  of  the  mem- 
bers of  each  House,  on  any  question,  shall,  at  the  desire  of  one-fifth  part  of  the 
members  present,  be  entered  on  the  journal. 

Sect.  8.  During  the  session  of  the  Legisb.ture  neither  House,  without  the 
consent  of  the  other,  shall  adjourn  for  more  than  three  days,  nor  to  any  place  than 
that  at  which  the  two  Houses  are  sitting. 

Sect.  9.  The  Members  of  each  House  shall  be  ineligible  to  any  civil  office 
under  the  authority  of  the  United  States  created,  or  the  emoluments  whereof  shall 
have  been  encreased  during  the  time  for  which  they  siiall  respectively  be  elected  — 
and  no  person  holding  any  office  under  the  United  States  shall  be  a  Member  of 
either  House  during  his  continuance  in  Office. 

Sect.  10.  The  members  of  each  House  shall  receive  a  compensation  for  their 
services,  to  be  paid  out  of  the  Treasury  of  the  United  States,  to  be  ascertained  by 
law. 

Sect.  n.  The  enacting  stile  of  the  laws  of  the  United  States  shall  be.  "  Be  it 
enacted,  by  the  Senate  and  Representatives  in  Congress  assembled 

Sect.  12.  All  Bills  for  raising  revenue  shall  originate  in  the  House  of  repre- 
sentatives :  but  the  Senate  may  propose  or  concur  with  amendments  as  on  other 
bills.  No  money  shall  be  drawn  from  the  Treasury  but  in  consequence  of  appro- 
priations made  by  law. 

Sect.  13.  Every  bill,  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  become  a  law,  be  presented  to  the  President  of  tiu; 
United  Slates,  for  his  revision ;  if,  upon  such  revision,  he  approve  of  it,  he  shall 
signify  his  approbation  by  signing  it:  But  if,  upon  such  revision,  it  shall  ai)i)ear  to 
him  improper  for  being  passed  into  a  law,  he  shall  return  it,  together  with  his  objec- 
tions against  it,  to  that  House  in  which  it  shall  have  originated,  who  shall  enter  the 
objections  at  large  on  th?ir  Journal,  and  proceed  to  reconsider  tlie  bill.  But  if, 
after  such  reconsideration,  three-fourths  of  that  House  shall,  notwithstanding  the 
objections  of  the  President,  agree  to  pass  it,  it  shall,  together  with  his  objections  be 


V 
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544         THE   INITED  STATES:   A  STUDY   IN   INTEKNATIONAL  ORGANIZATION 

sent  to  the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and.  if  approved 
by  three-fourths  of  the  other  House  also,  it  shall  become  a  law.  But.  m  all  such 
cases  the  votes  of  both  Houses  shi  1  be  determined  by  Yeas  and  Nays;  and  the 
names  of  the  persons  voting  for  or  against  the  bill  shall  be  entered  '"  'he  Journa 
of  each  House  respectively.  H  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundays  excepted)  after  it  shall  have  been  presented  to  h.m. 
it  shall  b.  a  law.  unless  the  Legislature,  by  their  adjournment,  prevent  it*  return; 
in  which  case  it  shall  not  be  a  law.  _  „r  .u. 

Sect  14  Every  order,  resolution  or  vote,  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a  question 
of  adjournmem,  and  in  the  cases  hereinafter  memioned)  shall  be  presented  Xo 
the  President  for  his  revision;  and  before  the  same  shall  have  force  shall  be 
approved  by  him.  or.  bcmg  disapproved  by  him.  shall  be  repassed  by  the  Senate 
and  House  of  representatives,  according  to  the  rules  and  hm.Ut.ons  prescribed 
in  the  case  of  a  bill. 

VH 

Sect  1  The  Legislature  shall  have  power  to  lay  and  collect  taxes,  duties 
imposts' and  excises,  to  pay  the  debts  and  provide  for  the  common  defence  and 
general  welfare  of  the  United  States. 

To  regulate  commerce  with  foreign  nations,  and  among  the  several  States .  and 

with  the  Indian  tribes.  .     tt  ••  j  c»-»-.. . 

To  establish  an  uniform  rule  of  naturalization  throughout  the  United  States. 

To  coin  money ; 

To  regulate  the  value  of  foreign  coir  ; 

To  fix  the  standard  of  weights  and  measures . 

To  establish  post-offices  and  post-roads ; 

To  borrow  money  on  the  credit  of  the  United  States; 

To  appoint  a  Treasurer  by  joint  ballot ; 

To  constitute  tribunal?  inferior  to  the  supreme  court ; 

To  make  rules  concerning  captures  on  land  and  water ; 

To  define  and  punish  piracies  and  felonies  committed  on  the  high  seas,  to 
punish  the  counterfeiting  of  the  securities,  and  current  coin  of  the  United  States, 
and  offences  against  the  law  of  nations ; 

To  declare  war ;  and  grant  letters  of  marque  and  reprisal. 

To  raise  and  support  armies;  but  no  appropriation  of  money  to  that  use  shMI 
be  for  a  longer  term  than  two  years. 

To  provide  &  maintain  a  navy ;  ,      .        .  i 

To  make  rules  for  the  government   and  regulation  of  the  land  and  naval 

forces.  t    1      T'  • 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the  L  nion. 

suppress  insurrections,  and  repel  invasions; 

To  make  laws  for  organizine.  arming,  and  disciplining  the  militia.  and  for 


APPENDIX 


545 


governing  such  part  of  them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  States,  respectively,  the  appointment  of  the  Officers,  and 
the  authority  of  training  the  miUtia  according  to  the  discipline  prescribed  by  the 
United  States. 

To  establish  uniform  laws  on  the  subject  of  bankruptcie<!. 

To  exercise  exclusive  legislation  in  all  cases  whatsoevc-  jver  such  district  (not 
exceeding  ten  miles  s(|uare)  as  may  by  cession  of  particular  States  and  the  ac- 
ceptance of  the  Legislature  become  the  seat  of  the  Government  of  the  United 
States,  and  to  exercise  like  authority  over  all  Places  purchased,  by  the  consent  of 
the  Legislature  of  the  State,  for  the  erection  of  Forts,  Magazines,  Arsenals,  Dock 
Yards  and  other  needful  buildings. 

To  promote  the  progress  of  science  and  useful  arts  by  securing  for  limited 
times  to  Authors  and  Inventors  the  exclusive  right  to  their  respective  writings  and 
discoveries. 

And  to  make  all  laws  that  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested,  by  this  Constitution, 
in  the  government  of  the  L'nited  States,  or  in  any  department  or  officer  thereof. 

A.i '  debts  contracted  and  engagements  entered  into,  by  or  under  the  authority 
of  Congress  shall  be  as  valid  again.st  the  United  States  under  this  constitution  as 
under  the  confederation. 

Sect.  2.  Treason  against  the  United  States  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort.  The 
Legislature  shall  have  power  to  declare  the  punishment  of  treason.  No  person 
shall  be  convicted  of  treason,  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court.  Xo  attainder  of  treason  shall  work 
corruption  of  blood,  nor  forfeiture,  except  during  the  life  of  the  person  attainted. 
The  Legislature  shall  pass  no  bill  of  attainder  nor  any  ex  post  facto  laws. 

Sect.  3.  The  proportions  of  direct  taxation  shall  lie  regulated  by  the  whole 
number  of  free  citizens  and  inhabitants,  of  every  age,  sex,  and  condition,  including 
tho.se  bound  to  servitude  for  a  term  of  years,  and  three  fifths  of  all  other  persons 
not  comprehended  in  the  foregoing  description  (except  Indians  not  paying  taxes) 
which  number  shall,  within  three  years  after  the  first  meeting  of  the  Legislature, 
and  within  the  term  of  every  ten  years  afterwards,  be  taken  in  such  manner  as 
the  said  Legislature  shall  direct. 

Sect.  4.  Xo  tax  or  duty  shall  be  laid  by  the  Legislature  on  articles  exported 
from  any  State.  The  migration  or  importation  of  such  persons  as  the  .several 
States  now  existing  shall  think  proper  to  admit  .shall  not  be  prohibited  by  the 
Legislature  prior  to  the  year  1808  —  but  a  tax  or  duty  may  be  imposed  on  such 
importation  not  exceeding  ten  dollars  for  each  person.  Xor  shall  any  regulation 
of  commerce  or  revenue  give  preference  to  the  ports  of  one  State  over  those  of 
another,  or  oblige  Vessels  bound  to  or  from  any  State  to  enter,  clear,  or  pay 
duties  in  another. 

•  Tile  correct  location  of  this  clause  is  uncertain.  It  was  considered  and  adopted  in  con- 
nection with  the  "powers  of  Congress,"  and  so  is  inserted  hero. 


WM 


H: 


4 


«'. 


546         THE   UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  OUCANIIATION 

And  all  duties,  imposts,  and  excises,  laid  by  the  Legislature,  shall  be  uniform 

throughout  the  United  States.  ^.      .„  ♦»,.  <.-„.„, 

Sect.  5.    No  capitation  tax  shall  be  laid,  unless  m  proportion  to  the  census 

herein  before  directed  to  be  taken. 

Sect  7 »  The  United  States  shall  not  grant  any  title  of  nobility.  No  per- 
son holding  any  office  of  profit  or  trust  under  the  United  States,  shall  without 
the  consent  of  the  Legislature  accept  ot  any  present,  emolument,  office,  or  title 
of  any  kind  whatever,  from  any  king,  prince  or  foreign  Sute. 

VIII 
This  Constitution  and  the  Uws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made  or  which  shall  be  made  under  the  authority 
of  the  United  States  shall  be  the  supreme  law  of  the  several  States  and  of  their 
citizens  and  inhabitams:  and  the  judges  in  the  several  States  shall  be  bound 
thereby  in  their  decisions;  any  thing  in  the  constitutions  or  laws  of  the  several 
States  to  the  contrary  notwithstanding. 

IX 

Sect  1  The  Senate  of  the  United  States  shall  have  power  to  try  all  impeach- 
ments: bat  no  person  shall  be  convicted  without  the  concurrence  of  two  thirds  of 
the  Members  present :  and  every  Member  shall  be  on  oath. 


Sect   1     The  Executive  power  of  the  United  States  shall  be  vested  m  a  single 
nerson     His  stile  shall  be.  "  The  President  of  the  United  States  of  America: 
and  his  title  shall  be.  -  His  Excellc  ncy."     He  shall  hold  his  office  during  the  term 
of  four  years,  and  together  with  the  Vice  President,  chosen  for  the  same  term, 
be  elected  in  the  following  manner. 

Each  State  shall  appoint,  in  such  manner  as  its  legislature  may  direct,  a  number 
of  Electors  equal  to  the  whole  number  of  Senators  and  Memters  of  the  House  of 
representatives  to  which  the  State  may  be  entitled  in  the  Ugislature.  But  no 
Person  shall  be  apixiitited  an  Elector  who  is  a  member  of  the  Legislature  of  the 
United  States,  or  who  holds  any  office  of  profit  or  trust  under  the  Umted  States. 

The  Electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  two 
Persons  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the  same  State  with 
tiiemselves.-and  they  shall  make  a  list  of  all  the  Persons  voted  for,  and  of  the 
number  of  votes  for  each,  which  list  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  general  Government,  directed  to  the  President  of  the 

^f  flit  P 

The  President  of  the  Senate  shall  in  the  presence  of  the  Senate  and  House 
of  representatives  open  all  the  certificates  and  the  votes  shall  then  be  counted. 

I  Sect.  6  was  struck  out. 


APPENDIX 


547 


The  Person  having  the  greatest  number  of  votes  shall  be  the  President  (if 
such  number  be  a  majority  of  the  whole  number  of  the  Electors  appointed)  and 
if  there  be  more  than  one  who  have  such  a  majority,  and  have  an  equal  number 
of  votes,  then  the  House  of  representatives  shall  immediately  choose  by  ballot 
one  of  them  for  President,  the  representation  from  each  State  having  one  vote  — 
But  if  no  Person  have  a  majority,  then  from  the  five  highest  on  the  list,  the  House 
of  representatives  shall,  in  like  manner,  choose  by  ballot  the  President —  In 
the  choice  of  a  President  by  the  House  of  representatives  a  quorum  shall  consist 
of  a  Member  or  Members  from  two  thirds  of  the  States,  and  the  concurrence  of  a 
majority  of  all  the  States  shall  be  necessary  to  such  choice. —  and,  in  every  case 
after  the  choice  of  the  President,  the  Person  having  the  greatest  number  of  votes 
of  the  Electors  shall  be  the  vice-President :  But,  if  there  should  remain  two  or 
more  who  have  equal  votes,  the  Senate  shall  choose  from  them  the  Vice  President 

The  Legislature  may  determine  the  time  of  chusing  the  Electors  and  of  their 
giving  their  votes —  But  the  election  shall  be  on  the  same  day  throughout  the 
United  States 

The  Legislature  may  declare  by  law  what  officer  of  the  United  States  shall 
act  as  President  in  case  of  the  death,  resignation,  or  disability  of  the  President 
and  Vice  President;  and  such  Officer  shall  act  accordingly,  until  such  disability 
be  removed,  or  a  President  shall  be  elected 

Sect.  2.  No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of  the  U.  S. 
at  the  time  of  the  adoption  of  this  Constitution  shall  be  eligible  to  the  office  of 
President;  nor  shall  any  Person  be  elected  to  that  office,  who  shall  be  under  the 
age  of  35  years,  and  who  has  not  been  in  the  whole,  at  least  14  years  a  resident 
within  the  U.  S. 

Sect.  3.  The  Vice  President  shall  be  ex  officio,  President  of  the  Senate, 
except  when  they  sit  to  try  the  impeachment  of  the  President,  in  which  case  the 
Chief  Justice  shall  preside,  and  excepting  also  when  he  shall  exvtcise  the  powers 
and  duties  of  President,  in  which  case,  and  in  case  of  his  absence,  the  Senate 
shall  chuse  a  President  pro  tempore —  The  Vice  President  when  acting  as 
President  of  the  Senate  shall  not  have  a  vote  unless  the  House  be  equally  divided 

Sect.  4.  The  President  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  have  power  to  make  treaties:  and  he  shall  nominate  and  by  and  with  the 
advice  and  consent  of  the  Senate  shall  appoint  Ambassadors,  other  public  Min- 
isters and  Consuls,  Judges  of  the  supreme  Court,  and  all  other  officers  of  the 
U.  S.  whose  appointments  are  not  otherwise  herein  provided  for.  But  no  Treaty 
shall  be  made  without  the  consent  of  two  thirds  of  the  Members  present. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may  happen  during 
the  recess  of  the  Senate  by  granting  commissions  which  shall  expire  at  the  end  of 
the  next  session  of  the  Senate. 

Sect.  2}  He  shall,  from  time  to  time,  give  to  the  Lef;islature  information 
of  the  State  of  the  Union:  and  recommend  to  their  consideration  such  measures 
as  he  shall  judge  necessary,  and  expedient :  he  may  convene  both  or  either  of  the 

'  Original  numbering,  the  sections  above  numbered  2-4  were  insertions. 


If 


£>' .  SI 


f^' 


548         THE  UNITED  ETATES:   A  STUDY  IK   IKTEEKATlOHAt  OICAKUATIOW 

Houses  on  extrtordinary  occaiioni.  tnd  in  ewe  of  diMreement  between  the  two 
Houses,  with  regard  to  the  time  of  adjournment,  he  may  adjourn  ;h«?"  J"  »"«='' 
time  a.  he  shall  think  proper :  he  shall  take  care  that  the  law.  ofthe  Umjed  Sutes 
be  duly  and  faithfully  executed:  he  shall  commission  all  the  officers  of  the  United 
States  ■  and  shall  appoint  to  all  offices  established  by  this  constitution  except  m 
cases  herein  otherwise  provided  for.  and  to  all  offices  which  may  hereafter  be 
created  by  law.  He  shall  receive  Ambassadors,  other  public  Ministers  and  Con- 
suls. He  shall  have  power  to  grant  reprieves  and  pardons  except  in  cases  ot 
impeachment.  He  shall  be  Commander  in  Chief  of  the  Army  ""d  Navy  of  he 
United  States,  and  of  the  Militia  of  the  several  States  when  called  mto  the 
actual  service  of  the  United  States;  and  may  require  the  opinion  in  writing  ot 
the  principal  officer  in  each  of  the  executive  departments  upon  any  subject 
relating  to  the  duties  of  their  respective  offices.  He  shall,  at  stated  times,  receive 
for  his  services,  a  compensation,  which  shall  neither  be  encreased  nor  Jmimshed 
during  his  continuance  in  office.  Before  he  shall  enter  on  the  duties  of  his  depart- 
ment.  he  shall  take  the  following  Oath  or  Affirmation.  "  I  -  J° 

emnly  swear  (or  affirm)  that  I  will  faithfully  execute  the  Office  «>«  P«J<1"»  «/ 

the  United  States  of  America,  and  will  to  the  t^'V^'^TV.  IIT^,  "  He  sha  1 
preserve,  protect  and  defend  the  Constitution  of  the  United  States.  He  shall 
be  removed  from  his  office  on  impeachment  by  the  House  of  representatives,  and 
conviction  by  the  Senate,  for  treason  or  bribery  or  other  high  ""«:»  »"^ j;""" 
demeanors  against  the  United  States;  the  Vice  President  and  other  civil  Officers 
of  the  United  States  shall  be  removed  from  Office  on  impeachment  and  conviction 
as  aforesaid;  and  in  case  of  his  removal  as  aforesaid,  death,  absence,  resignation 
o  nab  h  ;  o  discharge  the  powers  or  duties  of  his  office  the  Vice  Pres.den 
Shan  exercise  those  powers  and  duties  until  another  President  be  chosen,  or  until 
the  inability  of  the  President  be  removed. 

XI 

Sect  1  The  Judicial  Power  of  the  United  States  both  in  law  and  equity 
shall  4  vested  in  one  Supreme  Court,  and  in  such  Inferior  Courts  as  shall  when 
f^esiry    "om  time  to  time,  be  constituted  by  the  Legislature  of  the  Umted 

^'Vc'ct  2  The  Judges  of  the  Supreme  Court,  and  of  the  Inferior  courts,  shall 
holds  their  .  *ces  during  good  behaviour.  They  shall,  at  stated  times  receive  for 
thdr  services,  a  compensation,  which  shall  not  be  diminished  during  the.r  com.nu- 

ance  in  office.^^^  Judicial  Power  shall  extend  to  all  cases  both  in  law  and  equity 
arising  under  this  Constitution  and  the  laws  of  the  United  States,  and  treaties 
made  or  which  shall  be  made  under  their  authority  to  all  cases  affecting  Am- 
risldors  other  Public  Ministers  and  Consuls;  to  all  cases  of  Admiralty  and 
Sme  Jurisdiction;  to  Comroversies  to  which  the  United  States  shall  be  a 
partMo  controversies  between  two  or  more  States  (except  such  as  shall  regard 


APPENDIX 


549 


Territory  and  Jurisdiction)  between  a  State  and  citiiens  of  another  State,  between 
citizens  of  different  States,  between  citizens  of  the  same  State  claiminu  lands 
under  grants  of  different  States,  and  l)etween  a  Stnte  or  the  citizens  thereof 
and  foreign  States,  citizen-,  or  subjects.  In  cases  affecting  Ambassadors,  other 
Public  Ministers  and  Consuls,  and  thosp  in  which  a  St.itc  shall  be  party,  the 
Supreme  Court  shall  have  orijjinal  jurisdlrtifin.  In  all  other  cases  bcforemen- 
tioned  the  Supreme  Court  shall  have  apiH-ilatc  jnrisdiciion  both  as  to  law  and 
fact  with  such  exceptions  and  under  such  rcgulatinns  as  the  Legislature  shall 
make. 

Sfct.  4.  The  trial  of  all  crimes  (except  in  cases  of  imiiearhments)  shall  be 
by  jury  and  such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall  have 
been  committed ;  Imt  when  not  committed  witliin  any  State  then  the  irial  shall 
be  at  such  place  or  places  as  the  Legislature  may  direct. 

The  privilege  of  the  writ  of  Habeas  Corpus  shall  not  be  suspended;  unless 
where  in  cases  of  rebellion  or  invasion  the  pul)lic  safety  may  require  it. 

Sect.  5.  Judgment,  in  cases  of  Impeachment,  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office  of  honour, 
trust  or  profit  under  the  United  States.  Hut  the  Party  convicted  shall  neverthe- 
less, be  liable  and  subject  to  indictment,  trial,  judgment  and  punishment,  accord- 
ing to  law. 

XII 

No  State  shall  coin  money;  nor  emit  bills  of  credit,  nor  make  anything  but 
gold  or  silver  coin  a  tender  in  payment  of  debts ;  nor  pass  any  bill  of  attainder  or 
ex  post  facto  laws;  nor  grant  letters  of  marque  and  reprisal,  nor  enter  into  any 
treaty,  alliance,  or  confederation ;  nor  grant  any  title  of  nobility. 


% 


XIII 

No  State,  without  the  consent  of  the  Legislature  of  the  United  States  shall 
lay  imposts  or  duties  on  imports  or  exports,  nor  with  such  consent  but  for  the 
use  of  the  treasury  of  the  United  States ;  nor  keep  troops  or  ships  of  war  in  time 
of  peace;  nor  enter  into  any  agreement  or  compact  with  another  State,  or  with 
any  foreign  power ;  nor  engage  in  any  war.  unless  it  shall  be  actually  invaded  by 
enemies,  or  the  danger  of  invasion  be  so  imminent,  as  not  to  admit  of  a  delay, 
until  the  Legislature  of  the  United  States  can  be  consulted. 


XIV 

The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  of  the  several  States. 

XV 

Any  person  charged  with  treason,  felony,  or  other  crime  in  any  State,  who 
shall  Hee  from  justice,  and  stiatt  be  luinid  in  uii>   oilier  S'.cic,  -iiaii,  nn  dfinr!;;  I 


d, 


•a* 


550         TUB   fNITED  states:    a   RTl'DV   IN    INTKNATIONAL  OHOANIZATJOM 

of  the  Executive  Power  of  the  State  from  which  he  fled,  be  delivered  up  ind 
removed  to  the  State  having  juriMliction  of  the  oflFence. 

If  any  Person  bound  to  service  or  labor  in  any  of  the  United  States  shall 
escape  into  another  State.  He  or  She  shall  not  be  discharged  from  such  service 
or  Inhor  in  consequence  of  any  regulations  subsisting  in  the  State  to  which  they 
ctcap.';  but  shall  be  delivered  up  to  the  person  justly  cb.imiug  their  service  or 

labor. 

XVI 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  puWic  Acts,  records, 
and  judicial  proceedings  of  every  other  State,  and  the  Legislature  may  by  general 
laws  prescribe  the  manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved  and  the  eflFect  thereof. 

XVII 

New  States  may  be  admitted  by  the  Legislature  into  this  Union ;  but  no  new 
State  shall  be  hereafter  formed  or  erected  within  the  jurisdiction  of  any  of 
the  present  States,  without  the  consent  of  the  Legislature  of  such  State  as  well 
as  of  the  general  Legislature.  Nor  shall  any  State  be  formed  by  the  junction  of 
two  or  mire  States  or  parts  thereof  without  the  consent  of  the  Legislatures  of 
such  States  as  well  as  of  the  Legislature  of  the  United  States. 

The  Legislature  shall  have  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belonging  to  the  United 
States:  and  nothing  in  this  Constitution  contained  shall  be  so  construed  as  to 
prejudice  any  claims  either  of  the  United  States  or  of  any  particular  State. 

XVIII 
The  United  States  shall  guaranty  to  each  State  a  Republican  form  of  govern- 
ment ;  and  sh.-\ll  protect  each  State  against  invasions,  and,  on  the  application  of  its 
Legislature  or  Executive,  against  domestic  violence. 

XIX 

The  Legislature  of  the  United  States,  whenever  two  thirds  of  both  Houses 
shall  deem  i.-ccssary,  or  on  the  application  of  two  thirds  of  the  Legislatures  of 
the  several  S  ates,  .sh.ill  projwsc  amendments  »<«  tliis  Constitution  which  shall  be 
valid  to  all  ii.ients  and  purposes  as  parts  thereof,  when  the  same  shall  have  been 
ratified  by  three  fourths  at  least  of  the  Legislatures  of  the  several  States,  or  by 
Conventions  in  three  fourths  thereof,  as  one  .r  the  other  mode  of  ratification 
may  be  proposed  by  the  Legislature  of  the  United-States:  Provided  that  no 
amendments  which  may  be  made  prior  to  the  year  1808  shall  m  any  manner 
afiect  the  4th  and  5th  Sections  of  article  the  7th 

XX 

The  Members  of  the  Legislatures,  .ind  the  executive  and  judicial  officers  of 


ArrENPix 


551 


the  United  Siaten,  and  o(  the  several  Stales,  shall  be  bound  by  oath  or  affirmation 
tu  tu|>|iurt  iiil>  LuHsiiiutiuii. 

Hut  no  religiouii  test  *liall  ever  be  required  as  a  qualification  to  any  office  or 
public  truot  under  the  authority  of  the  United  States. 


XXI 

The  ratification  of  the  ronvcntinns  of  nine  States  shall  be  sufficient  for 
organising  this  Consititution  between  tlie  said  States. 

XXII 

This  Constitution  shall  be  laid  before  the  I'nited  States  in  Congress  assembled, 
and  it  is  the  opinion  of  this  Convention  that  it  should  I*  afterwards  submitted  to 
a  Convention  chosen  in  cacli  Slate,  under  the  recommendation  of  its  Legislature, 
In  order  to  receive  the  ratification  of  such  Convention. 


\  I 


I 


I 


XXIII 

To  introduce  this  government,  it  is  the  opinior  of  this  Convention,  that  each 
assenting  Convention  should  notify  its  assent  and  ratification  to  the  I'nitcd 
States  in  Congress  assembled ;  that  Congress,  after  receiving  the  assent  and  ratifi- 
cation of  the  Conventions  of  nine  States,  should  appoint  and  publish  a  day,  as 
early  as  may  Iw,  and  appoint  a  place  for  commencing  proceedings  under  this  Con- 
stitution; that  after  such  publication,  the  I.cgislalures  of  the  several  States  should 
elect  Members  of  the  Senate,  and  direct  the  e'cction  of  Members  of  the  House  of 
Representatives;  and  that  the  Members  of  the  I-egislature  should  meet  at  the 
time  and  place  assigned  by  Congress  and  should,  as  soon  as  may  be,  after  their 
meeting,  proceed  to  execute  this  Constitution. 


.PIP 


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THE   UNITED  STATES".   A  STUDY   IN   INTERNATIONAL  ORGANIZATION 


T' 


5* 
0 


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IX     THE  CONSTITUTION   AS   REPORTED   BY   THE  COMMITTEE 

ON  STYLE.  SEPTEMBER  12.  1787.  AND  AS  SIGNED. 

SEPTEMBER  17,  1787. 


Report  of  the  Committee  on  Style} 

We,  the  people  of  the  United  States. 
in  order  to  form  a  more  perfect  union, 
to  establish  justice,  insure  domestic 
tranfiuillity,  provide  for  the  common  de- 
fence, promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,  do  ordain  and 
establish  this  Cmstitution  for  the 
United  States  of  America. 

Article  I 

Seet.  1.  ALL  legislative  powers 
herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Rep- 
resentatives. 

Sect.  2.  The  House  of  Representa- 
tives shall  ^e  composed  of  members 
chosen  every  second  year  by  the  people 
of  the  several  states,  and  the  electors  in 
each  state  shall  have  the  qualifications 
requisite  for  electors  of  the  most  nu- 
merous branch  of  the  state  legislature. 

(a)  No  person  shall  be  a  representa- 
tive who  shall  not  have  attained  to  the 
age  of  twenty-five  years,  and  been  seven 
years  a  citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an 
iiiliabitant  of  that  state  in  which  he 
shall  be  chosen. 

0>)  Representatives  and  direct  taxes 
.shall  he  ai>portioneil  among  the  several 
states  which  may  be  included  within 
this  Union,  .iccording  to  their  respec- 
tive   numbers,    which    shall    be    deter- 


The  Constitution  as  signed.' 

We  the  People  of  the  United  States, 
in  Order  to  form  a  more  perfect  Union, 
establish  Justice,  insure  domestic  Tran- 
quility, provide  for  the  common  de- 
fence, promote  the  general  Welfare, 
and  secure  the  Blessings  of  Liberty  to 
ourselves  and  our  Posterity,  do  ordain 
and  establish  this  Constitution  for  the 
United  States  of  America. 

Article  I 
Section  1.  All  legislative  Powers 
herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Rep- 
resentatives. 

Section  2.  The  House  of  Repre- 
sentatives shall  be  composed  of  Mem- 
bers chosen  every  second  Year  by  the 
I'eople  of  the  several  States,  and  the 
Electors  in  each  State  shall  have  the 
Qualifications  requisite  for  Electors  of 
t1ie  most  numerous  Branch  of  the  State 
I  .cgislature. 

No  Person  shall  be  a  Representative 
who  shall  not  have  attained  to  the  .\ge 
of  twenty  five  Years,  and  been  seven 
Years  a  Citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an 
Inhabitant  of  that  State  in  which  he 
shall  be  cliosen. 

Representatives  and  direct  Taxes 
shall  be  ajjportioncd  among  the  several 
States  which  may  be  included  within 
this  L'nion,  .tccurding  to  their  respec- 
tive   Numbers,   which   shall   be   deter- 


1  [l-n:uwntisrv  Hist.^'-y.  Vol.  iii,  pp    72fr-733. 
=  y),.<HMi.'M(ury  llisl<'>y.  Vol.  ii.  pp.  3-20. 


APPENDIX 


553 


Report  of  the  Committee  on  Style. 

mined  by  adding  to  the  whole  number 
of  free  persons,  including  those  bound 
to  servitude  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three 
fifths  of  all  other  persons.  The  actual 
enumeration  shall  be  made  within  three 
years  after  the  first  meeting  of  the  Con- 
gress of  the  United  States,  and  within 
every  subsequent  term  of  ten  years,  in 
such  manner  as  they  shall  by  law  di- 
rect. The  number  of  representatives 
shall  not  exceed  one  for  every  forty 
thousand,  but  each  state  shall  have  at 
least  one  representative :  and  until  such 
enumeration  shall  be  made,  the  state  of 
New-Hampshire  shall  be  entitled  to 
chuse  three,  Massachusetts  eight, 
Rhode-Island  and  Providence  Planta- 
tions one,  Connecticut  five,  New-York 
six,  New-Jersey  four,  Pennsylvania 
eight,  Delaware  one,  Maryland  six, 
Virginia  ten,  North-Carolina  five, 
South-Carolina  five,  and  Georgia  three. 

(c)  When  vacancies  happen  in  the 
representation  from  any  state,  the  Ex- 
ecutive authority  thereof  shall  issue 
writs  of  election  to  fill  such  vacancies. 

(d)  The  House  of  Representatives 
shall  choose  their  Speaker  and  other 
officers;  and  they  shall  have  the  sole 
power  of  impeachment. 

Sect.  3.  The  Senate  of  the  United 
States  shall  be  composed  of  two  sena- 
tors from  each  state,  chosen  by  the  leg- 
islature thereof,  for  six  years :  and  each 
senator  shall  have  one  vote. 

(a)  Immediately  after  they  sh.nll  be 
assembled  in  consequence  of  the  first 
election,  tlvy  shall  '.«  divided  as  equally 
as  may  be  into  three  classes.  The  seats 
of  the  senators  of  the  first  class  shall  ne 
vacated  at  the  expiration  of  the  second 
\iar,  of  the  second  class  at  the  expira- 


The  Constitution  as  signed. 

mined  by  adding  to  the  whole  Number 
of  free  Persons,  including  those  bound 
to  Service  for  a  Term  of  Years,  and 
excluding  Indians  not  taxed,  three  fifths 
of  all  other  Persons.  The  actual  Enu- 
meration shall  be  made  within  three 
Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and 
within  every  subsequent  Term  of  ten 
Y'.  rs,  in  such  Manner  as  they  shall  by 
Law  direct.  The  Number  of  Repre- 
sentatives shall  not  exceed  one  for  every 
thirty  Thousand,  but  each  State  shall 
have  at  Least  one  Representative;  and 
until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be 
entitled  to  chuse  three,  Massachusetts 
eight,  Rhode-Island  and  Providence 
Plantations  one,  Connecticut  five,  New- 
York  six,  New  Jersey  four,  Pennsyl- 
vania eight,  Delaware  one,  Maryland 
six,  Virginia  ten.  North  Carolina  five, 
South  Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  Rep- 
resentation from  any  State,  the  Execu- 
tive Authority  thereof  shall  issue  Writs 
of  Election  to  fill  such  \'acancies. 

The  House  of  Representatives  shall 
chuse  their  Speaker  and  other  Officers ; 
and  shall  have  the  sole  Power  of  Im- 
peachment. 

Section  3.  The  Senate  of  the  L^nited 
States  shall  be  composed  of  two  Sena- 
tors from  each  State,  chosen  by  the  Leg- 
islature thereof,  for  six  Years :  and  each 
Senator  shall  have  one  \'ote. 

Immediately  after  they  shall  be  as- 
sembled in  Consequence  of  the  first 
Election,  they  .shall  be  divided  as  equally 
as  may  be  into  three  Classes.  The 
Seats  of  the  Senators  of  the  first  Class 
shall  be  vacated  at  the  Expiration  of 
the  second  Year,  of  the  second  class  at 


1^ 


m-n 


I , 

If*  If 

L     l\ 


ii 


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554  THE  UNITED  STATES".   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 


Report  of  the  Committee  on  Style. 

tion  of  the  fourth  year,  and  of  the  third 
class  at  the  expiration  of  the  sixth  year, 
so  that  one-third  may  be  chosen  every 
second  year:  and  if  vacancies  happen 
by  resignation,  or  otherwise,  during  the 
recess  of  the  legislature  of  any  state, 
the  Executive  thereof  may  make  tem- 
porary appointments  until  the  next 
meeting  of  the  Legislature. 


(b)  No  person  shall  be  a  senator  who 
shall  not  have  attained  to  the  age  of 
thirty  years,  and  been  nine  years  a  citi- 
zen of  the  United  States,  and  who  shall 
not.  when  elected,  be  an  inhabitant  of 
that  state  for  which  he  shall  be  chosen. 

(c)  The  Vice-President  of  the  United 
States  shall  be,  ex  officio,  President  of 
the  senate,  but  shall  have  no  vote,  un- 
less they  be  equally  divided. 

(d)  The  Senate  shall  choose  their 
other  officers,  and  also  a  President  pro 
tempore,  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the 
office  of  President  of  the  United  States. 

(e)  The  Senate  shall  have  the  sole 
power  to  try  all  impeachments.  When 
sitting  for  that  inirposc.  they  shall  be  on 
oaih.  When  tbe  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall 
preside;  And  no  person  shall  be  con- 
victed without  the  concurrence  of  two- 
thirds  of  the  members  present. 

(i)  Judgment  in  cases  of  impeach- 
ment shall  not  extend  further  than  to  re- 
moval from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust 
or  profit  under  the  United  States:  but 
the  party  convicted  shall  nevertheless  be 


The  Constitution  as  signed. 

the  Expiration  of  the  fourth  Year,  and 
of  the  third  Class  at  the  Expiration  of 
the  sixth  Year,  so  that  one  third  may 
be  chosen  every  second  Year;  and  if 
\acancies  happen  by  Resignation,  or 
otherwise,  during  the  Recess  of  the 
Legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  Appoint- 
ments until  the  next  Meeting  of  the 
Legislature,  which  shall  then  fill  such 
Vacancies. 

No  Person  shall  be  a  Senator  who 
shall  not  have  attained  to  the  Age  of 
thirty  Years,  and  been  nine  Years  a 
Citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  Inhabitant 
of  that  State  for  which  he  shall  be 
chosen. 

The  Vice  President  of  the  United 
States  shall  be  President  of  the  Senate, 
but  shall  have  no  Vote,  unless  they  be 
equally  divided. 

The  Senate  shall  chuse  their  other 
Officers,  and  also  a  President  pro  tem- 
pore, in  the  Absence  of  the  Vice  Presi- 
dent, or  when  he  shall  exercise  the  Of- 
fice of  President  of  the  United  States. 
The  Senate  shall  have  the  sole  Power 
to  try  all  Impeachments.  When  sitting 
for  that  Purpose,  they  shall  be  on  Oath 
or  Affirmation.  When  the  President  of 
the  United  States  is  tried,  the  Chief 
Justice  shall  preside:  And  no  Person 
shall  be  convicted  without  the  Concur- 
rence of  two  thirds  of  the  Members 
present. 

Judgment  in  Cases  of  Impeachment 
shall  not  extend  further  than  to  removal 
from  Office,  and  disqualification  to  hold 
and  enjoy  any  Office  of  honor.  Trust 
or  Profit  under  the  United  States:  but 
the  Party  convicted  shall  nevertheless 


APPENDIX 


555 


Report  of  the  Committee  on  Style. 

liable  and  subject  to  indictment,  trial, 
judgment  and  punishment,  according  to 
law. 

Sect.  4.  The  times,  places  and  man- 
ner of  holding  elections  for  senators 
and  representatives,  shall  be  prescribed 
in  each  state  by  the  legislature  thereof : 
but  the  Congress  may  at  any  time  by 
law  make  or  alter  such  regulations. 


(a)  The  Congress  shall  assemble  at 
least  once  in  every  year,  and  such  meet- 
ing shall  be  on  the  first  Monday  in  De- 
cember, unless  they  shall  by  law  appoint 
a  different  day. 

Sect.  5.  Each  House  shall  be  the 
judge  of  the  elections,  returns  and  qual- 
ifications of  its  own  members,  and  a 
majority  of  each  shall  constitute  a 
quorum  to  do  business:  but  a  smaller 
number  may  adjourn  from  day  to  day, 
and  may  be  authorized  to  compel  the 
attendance  of  absent  members,  in  such 
manner,  and  under  such  penalties  as 
each  house  may  provide. 

(a)  Each  house  may  determine  the 
rules  of  us  proceedings;  punish  its 
members  for  disorderly  behaviour,  and, 
with  the  concurrence  of  two-thirds,  ex- 
pel a  member. 

(b)  Each  house  shall  keep  a  journal 
of  its  proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  parts 
as  may  in  their  judgment  require  se- 
crecy; and  the  yeas  and  nays  of  the 
members  of  either  house  on  any  ques- 
tion shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  tlie  jour- 
nal. 

(c)  Neither  house,  during  the  .session 
of  Congress,  shall,  without  the  consent 
of   the  other,  adjourn   for  more  than 


The  Constitution  as  signed. 

be  liable  and  subject  to  Indictment, 
Trial,  Judgment  and  Punishment,  ac- 
cording to  Law. 

Section  4.  The  Times,  Places  and 
Manner  of  holding  Elections  for  Sena- 
tors and  Rrpresentatives,  shall  be  pre- 
scribed in  each  State  by  the  Legislature 
thereof ;  but  the  Congress  may  at  any 
time  by  Law  make  or  alter  such  Regu- 
lations, except  as  to  the  Places  of  chus- 
ing  Senators. 

The  Congress  shall  assemble  at  least 
once  in  every  Year,  and  such  Meeting 
shall  be  on  the  first  Monday  in  Decem- 
ber, unless  they  shall  by  Law  appoint  a 
different  Day. 

Section  5.  Each  House  shall  be  the 
Judge  of  the  Elections,  Returns  and 
Qualifications  of  its  own  Members,  and 
a  Majority  of  each  shall  constitute  a 
Quorum  to  do  Business ;  but  a  smaller 
Number  may  adjourn  from  day  to  day, 
and  may  be  authorized  to  compel  the 
Attendance  of  absent  Members,  in  such 
Manner,  and  under  such  Penalties  as 
each  House  may  provide. 

Eacii  I  louse  may  determine  the  Rul^s 
of  its  Proceedings,  punish  its  Members 
for  disorderly  Behaviour,  and,  with  the 
Concurrence  of  two  thirds,  expel  a 
Member. 

Each  House  shall  keep  a  Journal  of 
its  Proceedings,  and  from  time  to  time 
publish  the  same,  excepting  sucli  Parts 
as  may  in  their  Judj^ment  rc'iuire  Se- 
crecy; and  the  Yeas  and  Xays  of  the 
Members  of  either  House  on  any  (|ues- 
tion  shall,  at  the  Desire  of  one  fifth  of 
those  Present,  be  entered  on  the  Jour- 
nal. 

Neither  House,  during  the  Session 
of  Congress,  shall,  withotit  the  Consent 
of  the  other,  adjourn   for  more  than 


I: 


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556  THE   UNITED  STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 


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Report  of  the  Committee  on  Style. 

three  days,  nor  to  any  other  place  than 
that  in  which  the  two  houses  shall  be 
sitting. 

Sc(t.  6.  The  senators  and  repre- 
sentatives shall  receive  a  compensation 
for  their  services,  to  be  ascertained  by 
law  and  paid  out  of  the  treasury  of  the 
United  States.  They  shall  in  all  casus, 
except  treason,  felony  and  breach  of  the 
peace,  be  privileged  from  arrest  during 
their  attendance  at  the  si-ssion  of  their 
respective  houses,  and  in  going  to  and 
returning  from  the  same ;  and  for  any 
speech  or  debate  in  either  house,  tbty 
shall  not  be  questioned  in  any  other 
place. 

(a)  No  senator  or  representative 
shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  ofticc 
under  the  authority  of  the  United 
States,  which  shall  have  been  created, 
or  the  emoluments  whereof  shall  have 
been  encreascd  during  such  time;  and 
no  person  holding  any  office  under  the 
United  States,  shall  be  a  member  of 
either  bouse  during  his  continuance  in 
oflficc. 

Sect.  7.  The  enacting  stile  of  the 
laws  shall  be.  "  Be  it  enacted  by  the 
senators  and  representatives  in  Con- 
gress assembled." 

(a)  All  bills  for  raising  revenue  shall 
originate  in  the  ho"  e  of  representa- 
tives: but  the  sc  I  ly  propose  or 
concur  with  ameni....  -uS  as  on  other 
bills. 

(Ii)  Kvery  bill  which  shall  have  passed 
the  house  of  representatives  and  the 
senate,  shall,  before  it  tx;come  a  law,  be 
presented  to  the  president  of  the  I'nited 
States.  If  he  approve  he  shall  sign  it, 
but  if  not  he  shall  return  it,  with  his 
objections   to   that   house   in   which   it 


The  Constitution  as  signed. 

three  days,  nor  to  any  other  Place  than 
that  in  which  the  two  Houses  shall  be 
sitting. 

Section  6.  The  Senators  and  Repre- 
sentatives shall  rei  v  a  Comiiensation 
for  their  Services,  i  L  ascertained  by 
Law,  and  paid  out  of  the  Treasury  of 
the  United  States.  They  shall  in  all 
Cases,  except  Treason,  Felony  and 
r.reach  of  the  Peace,  be  privileged  from 
Arrest  during  their  Attendance  at  the 
Session  of  their  respective  Houses,  and 
in  going  to  and  returning  from  the 
same;  and  for  any  Speech  or  Debate 
in  either  House,  they  shall  not  be  ques- 
tioned in  any  other  Place. 

No  Senator  or  Representative  shall, 
during  the  Time  for  which  he  was 
elected,  be  appointed  to  any  civil  Office 
under  the  Authority  of  the  United 
States,  which  shall  have  been  created, 
or  the  Emoluments  whereof  shall  have 
been  encreased  during  such  time,  and 
no  Person  holding  any  Office  under  the 
United  States,  shall  be  a  Member  of 
either  House  during  his  Continuance  in 
Office. 
Section  7. 


All  Bills  for  raising  Revenue  shall 
originate  in  the  House  of  Representa- 
tives; but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other 
Dills. 

Every  Bill  which  shall  have  passed 
the  House  of  Representatives  and  tlie 
Scn.ite,  shall,  before  it  become  a  Law, 
be  i)resented  to  the  President  of  the 
United  States;  H  he  approve  he  shall 
si^n  it,  but  if  not  he  shall  return  it, 
with  his  Objections  to  that  House  in 


APPENDIX 


557 


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Report  of  the  Committee  on  Style. 

shall  have  originated,  wlio  shall  enter 
the  objections  at  large  on  their  journal, 
and  proceed  to  reconsider  it.  If  after 
such  reconsideration  two-thirds  of  that 
house  shall  agree  to  pass  the  bill,  it 
shall  be  sent,  together  with  the  objec- 
tions, to  the  other  house,  by  which  it 
shall  likewise  be  reconsidered,  and  if 
approved  by  two-thirds  of  that  house,  it 
shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  houses  shall  be 
determined  by  yeas  and  nays,  and  the 
names  of  the  persons  voting  for  and 
against  the  bill  shall  be  entered  on  the 
journal  of  each  house  resi)ectively.  If 
any  bill  shall  not  be  returned  by  the 
President  within  ten  days  (  Sundays  ex- 
cepted) after  it  shall  have  been  pre- 
sented to  him,  the  same  shall  be  a  law, 
in  like  manner  as  if  he  had  signed  it, 
unless  the  Congress  by  their  adjourn- 
ment prevent  its  return,  in  which  case 
it  shall  not  be  a  law. 

(c)  Every  order,  resolution,  or  vote  to 
which  the  concurrence  of  the  Senate 
and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  ad- 
journment) shall  be  presented  to  the 
President  of  the  United  States ;  and  be- 
fore the  same  shall  take  'ffect,  shall  be 
approved  by  him,  or,  being  disapproved 
by  him,  shall  be  repassed  by  three- 
fourths  of  the  Senate  and  House  of 
Representatives,  according  to  the  rules 
and  limitations  prescribed  in  the  case 
of  a  bill. 

Sect.  8.  The  Congress  may  by  joint 
ballot  appoint  a  treasurer.  They  shall 
have  power 

(a)  To  lay  and  collect  taxes,  diitie^. 
impHjsts  and  excises:  to  pay  the  deln-. 
and  provide  for  the  common  defence  and 
general  welfare  of  the  United  States. 


The  Constitution  as  signed. 

which  it  shall  have  originated,  who 
shall  enter  the  Objections  at  large  on 
their  Journal,  and  proceed  to  reconsider 
it.  If  after  such  Reconsideration  two 
thirds  of  that  House  shall  agree  to  pass 
the  r.ill,  it  shall  be  sent,  together  with 
the  Objections,  to  the  other  House,  by 
which  it  shall  hkewise  be  reconsidered, 
ami  if  approved  by  two  thirds  of  that 
House,  it  shall  become  a  law.  I'.ut  in 
all  such  Cases  the  \'otes  of  both  1  louses 
shall  be  determined  by  yeas  and  Xays, 
and  the  Xames  of  the  Persons  voting 
for  and  against  the  Bill  shall  be  entered 
on  the  Journal  of  each  House  respec- 
tively. If  any  Bill  shall  not  be  returned 
l>y  the  President  within  ten  Days  (  Sun- 
days excepted)  after  it  shall  have  been 
presented  to  him,  the  Same  shall  be  a 
Law.  in  like  Manner  as  if  he  had  signed 
it.  unless  the  Congress  by  their  .Ad- 
journment prevf-nt  its  Return,  in  which 
Case  it  shall  not  be  a  Law. 

Every  Order.  Resolution,  or  \'ote  to 
which  the  Concurrence  of  the  Senate 
and  House  of  Representatives  may  be 
necessary  ( except  on  a  question  of  .Ad- 
journment) shall  be  presented  to  the 
President  of  the  United  States ;  and  be- 
fore the  Same  shall  take  Efuct.  shall 
he  approved  I'v  him.  (.r  being  disap- 
proved t)y  him.  shall  be  repassed  by 
two  thirds  of  the  Senate  and  Hou>e  of 
Representatives,  a'cordint;  to  the  Rules 
and  Limitations  pre.scribed  in  the  Case 
of  a  i;ill. 

Section  8.  The  Congress  shall  have 
Power 

To  lay  and  collect  Taxes.  Duties, 
Imposts  and  l-^vcise>,  to  jiay  tht  Debts 
and  provide  tor  the  common  Defence 
and    general    Welfare    of    the    United 


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558         THE   UNITED  STATES:   A  STUDY   IN 

Report  of  the  Committee  on  Style. 


(b)  To  borrow  money  on  the  credit 
of  the  United  States. 

(c)  To  regulate  commerce  with  for- 
eign nations,  among  th'.  several  states, 
and  with  the  Indian  tribes. 

(d)  To  establish  an  uniform  rule  of 
naturalization,  and  uniform  laws  on  the 
subject  of  bankruptcies  throughout  the 
United  States. 

it)  To  coin  money,  regulate  the  value 
thereof,  and  of  foreign  coin,  and  fix 
the  standard  of  weights  and  measures. 

(f  >  To  provide  for  the  punishment  of 
counterfeiting  the  securities  and  cur- 
rent coin  of  the  United  States. 

(g)  To  establish  post  offices  and  post 
roads. 

(i)  To  promote  the  progress  of  science 
and  useful  arts,  by  securing  for  limited 
times  to  authors  and  inventors  the  ex- 
clusive right  to  their  respective  writings 
and  discoveries. 

(j)  To  constitute  tribunals  inferior  to 
the  supreme  court. 

(k)  To  define  and  punish  piracies  and 
felonies  committed  on  the  high  seas, 
and  punish  offences  against  the  law  of 
nations. 

(1)  To  declare  wa-,  grant  letters  of 
marque  and  reprisal,  and  m.ike  rules 
concerning  captures  on  land  and  water. 

(m)  To  raise  and  support  armies :  but 
no  appropriations  of  money  to  that  use 
shall  be  for  a  longer  term  than  two 
years. 

(n)   To  provide  and  maintain  a  navy. 

(o)  To  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and 
naval  forces. 


INTERNATIONAL  ORGANIZATION 

The  Constitution  as  signed. 

States ;  but  all  Duties,  Imposts  and  Ex- 
cises shall  be  uniform  throughout  the 
United  States ; 

To  borrow  Money  on  the  credit  of 
the  United  States; 

To  regulate  Commerce  with  foreign 
Nations,  and  among  the  several  States, 
and  with  the  Indian  Tribes; 

To  establish  an  uniform  Rule  of  Nat- 
uralization, and  uniform  Laws  on  the 
subject  of  Bankruptcies  throughout  the 
United  States; 

To  coin  Money,  regulate  the  Value 
thereof,  and  of  foreign  Coin,  and  fix 
the  Standard  of  Weights  and  Measures ; 
To  provide  for  the  Punishment  of 
counterfeiting  the  Securities  and  cur- 
rent Coin  of  the  United  States; 

To  establish  Post  Offices  and  post 
Roads ; 

To  promote  the  Progress  of  Science 
and  useful  Arts,  by  securing  for  lim- 
ited Times  to  Authors  and  Inventors 
the  exclusive  Right  to  their  respective 
Writings  and  Discoveries; 

To  constitute  Tribunals  inferior  to 
the  supreme  Court ; 

To  define  and  punish  Piracies  and 
Felonies  committed  on  the  high  Seas, 
and  Offences  against  the  Law  of  Na- 
tions ; 

To  declare  War,  grant  Letters  of 
Martiue  and  Reprisal,  and  make  Rules 
concerning  Captures  on  Land  and 
Water ; 

To  raise  and  support  Armies,  but  no 
Appropriation  of  Money  to  that  Use 
shall  be  for  a  longer  Term  than  two 
Years ; 

To  provide  and  maintain  a  Navy : 
To  make  Rules  for  the  Goverimient 
and  Regulation  of  the  land  and  navil 
Fortes  ; 


APPENDIX 


559 


Report  of  the  Committee  on  Style. 

(p)  To  provide  for  calling  fortli  the 
militia  to  execute  the  laws  of  the  union, 
suppress  insurrections  and  repel  inva- 
sions. 

(<))  To  provide  for  organizing,  arm- 
ing and  discipHning  the  militia,  and  for 
governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United 
States,  reserving  to  the  States  respec- 
tively, the  appointment  of  the  officers, 
and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed 
by  Congress. 

(r)  To  exercise  exclusive  legislation  in 
all  cases  whatsoever,  over  such  district 
(not  exceeding  ten  miles  squar:)  as 
may,  by  cession  of  particular  States  and 
the  acceptance  of  Congress,  bciA..iie  the 
seat  of  the  government  of  tiie  United 
States,  and  to  exercise  like  authority 
over  all  places  purchased  by  the  consent 
of  the  legislature  of  the  state  in  which 
the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-yards, 
and  other  needful  buildings  —  And 

(s)  To  make  all  laws  which  shall  be 
necessary  and  i)roper  for  carrying  into 
execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  constitu- 
tion in  the  government  of  the  United 
States,  or  in  any  department  or  officer 
thereof. 

Sect.  9.  The  migration  or  importa- 
tion of  such  persons  as  the  several  stales 
now  existing  shall  think  proper  to  ad- 
mit, shall  not  be  prohibited  by  the  Con- 
gress prior  to  the  year  one  thousan'l 
eight  hundred  and  eight,  but  a  tax  or 
duty  may  be  imposed  on  such  importa- 
tion, not  exceeding  ten  dollars  for  each 
person. 

(a)  The    privilege    of    the    writ    of 


The  Constitution  as  siijnid. 

To  provide  for  calling  forth  the  Mi- 
litia to  execute  the  Laws  of  the  Union, 
suppress  Insurrections  and  repel  Inva- 
sions ; 

To  provide  for  organizing,  arming, 
.-ind  disciplining,  the  Militia,  and  for 
governing  such  fart  of  them  as  may  be 
employed  in  the  Service  of  the  United 
State>;,  reserving  to  the  States  respec- 
tively, the  .Appointment  of  the  Officers, 
and  the  .Xuthority  of  training  the  Mi- 
litia according  to  the  discipline  pre- 
scribed by  Congress; 

To  exercise  exclusive  Legislation  in 
all  Cases  whatsoever,  over  such  District 
(not  e.xceeding  ten  Miles  scjuarej  as 
may,  by  Cession  of  ])articular  Slates, 
and  the  Accejitance  of  Congress,  be- 
come the  Seat  of  tlie  Government  of 
the  United  States,  and  to  exercise  like 
Authority  over  all  Places  purchased  by 
the  Consent  of  the  Legisl.iture  of  the 
State  in  which  the  Same  shall  be,  for 
the  Erection  of  Forts.  Magazines,  .Ar- 
senals, dock-Yards,  and  other  needful 
Buildings ;  —  .And 

To  make  all  Laws  which  shall  be  nec- 
essary and  proper  for  carr>ing  into 
Execution  the  foregoing  Powers,  and 
all  other  Powers  vested  by  this  Consti- 
tution in  the  Government  of  the  United 
States,  or  in  any  Department  or  Officer 
thereof. 

Section  9.  The  Migration  or  Im- 
portation of  such  Persons  as  any  of  the 
States  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  by  the 
Congres>  prior  to  the  ^'car  one  thou-and 
<  ijjht  hundred  and  eight,  but  a  Tax  or 
duty  ni.iy  Ije  inijiosed  on  sucli  Importa- 
tion, not  exceeding  ten  dollars  for  each 
Person. 

The  Privilege  of  the  Writ  of  Habeas 


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,,*)         T..E   LNITEU  SIATES:   A   STUPY    IN    INTERNATIONAL  ORGANIZATION 

The  Constitution  as  signed. 


Report  of  the  Committee  on  Style. 
habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  in- 
vasion the  public  safety  may  require  it. 

th>  No  bill  of  attainder  shall  Ik- 
passed,  nor  any  ex  post  facto  law. 

(c)  No  capitation  tax  shall  be  laid, 
unless  in  proportion  to  the  census  herein 
before  directed  to  be  taken. 

(d>  No  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  state. 


(e)  No  money  shall  be  drawn  from 
the  treasury,  but  in  consequence  of  ap- 
propriations made  by  law. 


(«)  No  title  of  nobility  shall  be  granted 
by  the  United  States.  And  no  person 
holding  any  office  of  profit  or  trust  un- 
der them,  shall,  without  the  consent  of 
the  Congress,  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind 
whatever,  from  any  king,  prince,  or 
foreign  state. 

Sect.  10.  Xo  state  shall  coin  money, 
nor  emit  bills  of  credit,  nor  make  any 
thing  but  gold  or  silver  coin  a  tender 
in  payment  of  debts,  nor  pass  any  bill 
of  attainder,  nor  ex  post  facto  laws, 
nor  laws  altering  or  impairing  the  obli- 
gation of  contracts:  nor  grant  letters 
of  marque  and  reprisal,  nor  enter  into 
any  treaty,  alliance,  or  confederation, 
nor  grant  any  title  of  nobility. 

(a)  No  state  shall,  without  the  consent 
of  Cc.iigrcs?.  lay  imposts  or  duties  on 


Corpus  shall  not  be  suspended,  unless 
when  in  Cases  of  Rebellion  or  Invasion 
the  public  Safety  may  require  it. 

No  bill  of  Attainder  or  ex  post  facto 
Law  shall  be  passed. 

No  Capitation,  or  other  direct,  Tax 
shall  be  laid,  unless  in  Proportion  to 
the  Census  or  Enumeration  herein  be- 
fore directed  to  be  taken. 

No  Tax  or  Duty  shall  be  laid  on  Ar- 
ticles exported  from  any  State. 

No  Preference  shall  be  given  by  any 
Regulation  of  Commerce  or  Revenue  to 
the  Ports  of  one  State  over  those  of 
another:  nor  shall  Vessels  bound  to.  or 
from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  Duties  in  another. 

No  Money  shall  be  drawn  from  the 
Treasury,  but  in  Consequence  of  Appro- 
priations made  by  Law ;  and  a  regular 
j  Statement  and  Account  of  the  Receipts 
and  Expenditures  of  all  public  Money 
shall  be  published  from  time  to  time. 

No  Title  of  Nobility  shall  be  granted 
by  the  United  States :  And  no  Person 
holding  any  Office  of  Profit  or  Trust 
under  them,  shall,  without  the  Consent 
of  the  Congress,  accept  of  any  present. 
Emolument.  Office,  or  Title,  of  any  kind 
whatever,  from  any  King.  Prince,  or 
foreign  State. 

Section  10.  No  State  shall  enter  into 
any  Treaty,  Alliance,  or  Confederation ; 
grant  Letters  of  Marque  and  Reprisal : 
coin  Money ;  emit  Bills  of  Credit ;  make 
any  Thing  but  gold  and  silver  Coin  a 
Tender  in  Payment  of  Debts ;  pass  any 
Bill  of  Attainder,  ex  post  facto  Law,  or 
L:  .V  impairing  the  Obligation  of  Con- 
tracts, or  grant  any  Title  of  Nobility. 


No  State  shall,  without  the  Consent 
of   the   Consiress.   lay   any   Imposts   or 


APPENDIX 


561 


Report  of  the  Committee  on  Style. 

imports  or  exports,  nor  with  such  con- 
sent, but  to  the  use  of  the  treasury  of 
the  United  States:  nor  keep  troops 
nor  ships  of  war  in  time  of  peace,  nor 
enter  into  an)-  agreenicnt  or  compact 
with  another  state,  nor  with  any  for- 
eign power.  Nor  engage  in  any  war, 
unless  it  shall  be  actually  invaded  by 
enemies,  or  the  danger  of  invasion  be  so 
iminent,  as  not  to  admit  of  dtlay  until 
the  Congress  can  be  consulted. 


II 

Sect.  I.  The  executive  power  shall 
be  vested  in  a  president  of  the  United 
States  of  America.  He  shall  hold  his 
office  during  the  term  of  four  years, 
and,  altogether  with  the  vice-president, 
chosen  for  the  same  term,  be  elected  in 
the  following  manner: 

(a)  Each  state  shall  appoint,  in  such 
manner  as  the  legislature  thereof  may 
direct,  a  number  of  electors,  equal  to 
the  whole  number  of  senators  and  rep- 
resentatives to  which  the  state  may  be 
entitled  in  Congress :  hut  no  senator  or 
representative  shall  be  appointed  an 
elector,  nor  any  person  holding  an  of- 
fice of  trust  or  profit  under  the  United 
States. 

(I))  The  electors  shall  meet  in  their 
respective  states,  and  vote  hy  hallot  for 
two  persons,  of  whom  one  at  least  shall 
not  be  an  inhabitant  of  the  same  state  i 
with  themselves.     And  they  shall  make  i 
a  list  of  all  the  persons  voted  for,  and  I 
of  the  number  of  votes  for  each ;  which  \ 


The  Constitution  as  signed. 

Duties  on  Imports  or  Exports,  except 
what  may  be  absolutely  necessary  for 
executing  it's  inspection  Laws:  and  the 
net  Produce  of  all  Duties  and  Imposts, 
laid  by  any  State  on  Imports  or  Ex- 
I)orts,  shall  be  for  the  Use  of  the  Treas- 
ury of  the  United  States ;  and  all  such 
Laws  shall  be  subject  to  the  Revision 
and  Controul  of  the  Congress. 

No  State  shall,  without  the  Consent 
of  Congress,  lay  any  Duty  of  Tonnage, 
keep  Troops,  or  Ships  of  War  in  time 
of  Peace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a 
foreign  Power,  or  engage  in  War,  un- 
less actually  invaded,  or  in  such  immi- 
nent Danger  as  will  not  admit  of  delay. 

Article  II 

Section  1.  The  executive  Power 
shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall 
hold  his  Office  during  the  Term  of  four 
Years,  and,  together  with  the  \ice  Pres-- 
ident,  chosen  for  the  same  Term,  be 
elected,  as  follows 

Each  State  shall  appoint,  in  such 
Manner  as  the  Legislature  thereof  may 
direct,  a  Number  of  Electors,  cjual  to 
the  whole  Number  of  Senators  and  Rep- 
resentatives to  which  the  State  may  be 
entitled  in  the  Congress  ;  but  no  Senator 
or  Representative,  or  Person  holding  an 
Office  of  Trust  or  Profit  under  the 
United  States,  shall  be  appointed  an 
Elector. 

The  Electors  shall  meet  in  their  re- 
spective States,  and  vote  by  Ballot  for 
two  Persons,  of  whom  one  at  least  shall 
not  be  an  Inhabitant  of  the  .same  State 
with  themselve>;.  .\nd  they  shall  make 
a  Lis.  of  all  the  Persons  voted  for.  and 
of  the  Number  of  \'otes  for  each ;  which 


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562         THE  UNITID  states:   a  study   in    I«T«tNATIONAL  O.CANUATIOM 


Report  of  the  Committee  on  Style. 

list  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  o(  the  gen- 
eral government,  directed  to  th-  presi- 
dent of  the  senate.     The  president  of 
the  senate  shall  in  the  presence  of  the 
senate   and    house    of    representatives 
open  all  the  certificates,  and  the  votes 
shall    then    be    counted.     The    person 
having  the  greatest  number  of   votes 
shall  be  the  president,  if  such  number 
be  a  majority  of  the  whole  number  of 
electors    appointed;    and    if    there    be 
more  than  one  who  have  such  major- 
ity, and  have  an  equal  number  of  votes 
then  the  house  of  representatives  shall 
immediately    chuse    by    ballot    one    of 
them  for  president;  and  if  no  person 
have  a  majority,  then   from  the  five 
highest  on  the  list  the  said  house  shall 
in  like  manner  choose  the   president. 
But  in  choosing  the  president,  the  votes 
shall  be  taken  by  states  and  not  pet- 
capita,   the    representation    from   each 
state  having  one  vote.    A  quorum  for 
this  purpose  shall  consist  of  a  member 
or   nrnbcrs    from   two-thirds   of   the 
states,  and  a  majority  of  all  the  states 
shall  be  necessary  to  a  choice.     In  every 
case,  after  the  choice  of  the  president 
by  the  representatives,  the  person  hav- 
ing the  greatest  number  of  votes  of  the 
electors    shall    be    the    vice-president. 
But  if  there  should  remain  two  or  more 
who  have  equal  votes,  the  senate  shall 
choose   from  them  by  ballot  the  vice- 
president. 

(c)  The  Congress  may  determine  the 
time  of  chusing  the  electors,  and  the 
time  in  which  they  shall  give  their 
votes ;  but  the  election  shall  be  on  the 
same  day  throughout  the  United  States. 
(a>  Xu  person  except  a  natur.il  born 
citizen,  or  a  citizen  of  the  United  States, 


The  Constitution  as  signed. 
List  they  shall  sign  and  certify,  and 
transmit  scaled  to  the  Seat  of  the  Gov- 
emment  of  the  United  States,  directed 
to  the  President  of  the  Senate.    The 
President  of  the  Senate  shall,  in  the 
Presence  of  the  Senate  and  House  of 
RepresenUtives.   open   all   the   Certifi- 
cates,   and    the    Votes    shall    then    be 
counted.     The  Person  having  the  great- 
est Number  of  Votes  shall  be  the  I'resi- 
dent.  if  such  Number  be  a  Majority  of 
the    whole    Number    of    Electors    ap 
pointed;  and  if  there  be  more  than  one 
who  have  such  Majority,  and  have  an 
equal  Number  of  \'otes.  then  the  House 
of    Representatives    shall    immediately 
chuse  by  Ballot  one  of  them  for  Presi- 
dent ;  and  if  no  Person  have  a  Majority, 
then  from  the  five  highest  on  the  List 
the  said  House  shall  in  like  Manner 
chuse  the  President.    But  in  chusing  the 
President,  the  Votes  shall  be  taken  by 
States,  the   Representation   from   each 
State  having  one  Vote ;     A  quorum  for 
this  Purpose  shall  consist  of  a  Member 
or  Members   from  two  thirds  of   the 
States,  and  a  Majority  of  all  the  States 
shall    be    necessary   to   a    Choice.     In 
every   Case,   after  the  Choice  of   the 
President,  the  Person  having  the  great- 
est Number  of  Votes  of  the  Electors 
shall  be   the   Vice   President.     But   if 
there  should  remain  two  or  more  who 
have  equal  Votes,  the  Senate  shall  chuse 
from  them  by  Ballot  the  \'ice  President. 


The  Congress  may  determine  the 
Time  of  chusing  the  Electors,  and  the 
Day  on  which  they  shall  give  their 
Votes;  which  Dr-y  shall  be  the  same 
throughout  the  United  States. 

No  Person  except  a  natural  born  Citi- 
zen, or  a  Citizen  of  the  United  Mates, 


APPENDIX 


563 


Pi't>ort  of  the  Comrnitttt  on  Style. 

at  the  time  of  the  adoption  of  this  con- 
stitution, shall  be  eligible  to  the  otfice  of 
president;  neither  shall  any  person  In- 
eligible to  that  office  who  shall  not  have 
attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident 
within  the  United  States. 

(«)  In  case  of  the  removal  of  the 
president  from  office,  or  of  his  death, 
resignation,  or  inability  to  discharge  the 
jKJwers  and  duties  of  the  said  office,  the 
same  shall  devolve  on  the  vice-presi- 
dent, and  the  Congress  may  by  law 
provide  for  the  case  of  removal,  death, 
resignation  or  inability,  both  of  the 
president  and  vice-president,  declaring 
what  officer  shall  then  act  as  president, 
and  such  officer  shall  act  accordingly, 
until  the  disability  be  removed,  or  the 
period  for  chusing  another  president 
arrive. 

(O  The  president  shall,  at  st.ittd 
times,  receive  a  fi.xed  compensation  for 
his  services,  which  shall  neither  be  en- 
creased  nor  diminished  during  the  pe- 
riod for  which  he  shall  have  been 
elected. 


(g)  Before  he  enter  on  the  execution 
of  his  office,  he  shall  take  the  following 
oath  or  affirmation :  "  I  ,  do  sol- 
emnly swear  (or  affirm)  that  I  will 
faithfully  execute  the  office  of  presi- 
dent of  the  United  States,  and  will  to 
the  best  of  my  judgment  and  power, 
preserve,  protect  and  defend  the  con- 
stitution of  the  United  States." 

Sect.  2.  The  president  shall  be 
commander  in  chief  of  the  army  and 
navy  of  the  Uni.ed  States,  and  of  the 
militia  of  the  several  States :  he  may 
require  the  opinion,  in  writing,  of  the 


The  Constitution  as  siijnt^. 

at  the  time  of  the  Adoption  of  this  Con- 
stitution, shall  t)e  eligible  to  the  <  »ffice 
of  I'resident;  neither  shall  any  Person 
be  eligible  to  that  Dflice  who  shall  not 
have  attained  to  the  Age  of  thirty  five 
Years,  and  Ix-en  fourteen  Years  a  Resi- 
dent within  the  United  States. 

In  Case  of  the  Removal  of  the  Presi- 
dent from  Otfiie.  or  of  his  Death,  Res- 
ignation, or  Inability  to  discharge  the 
Powers  and  htities  of  the  saiil  Office, 
llie  Same  shall  devolve  on  the  Vice 
President,  and  the  Congres«  'nay  by 
Law  provide  for  the  Case  of  Removal, 
Death,  Resignation  or  Inability,  Ixjth 
of  the  President  and  Nice  President, 
declaring  what  (Jfficer  shall  then  act  as 
President,  and  such  (Jfticer  shall  act  ac- 
cordingly, until  the  Disability  Ije  re- 
moved, or  a  Pre  '  shall  be  elected. 

The  President  si  ..I.  at  staled  Times, 
receive  for  his  Services,  a  Compensa- 
tion, which  shall  neither  be  encreased 
nor  diminished  during  the  I'eriod  for 
which  he  shall  have  Ix-en  elected,  and  \.< 
shall  not  receive  within  that  Period  any 
other  Emolument  from  the  United 
States,  or  any  of  them 

Before  he  enter  on  the  Execution  of 
his  Office,  he  shall  take  the  foUowmg 
Oath  or  Affirmation: — "  I  (Jo  solemnly 
swear  (or  affirm)  that  I  will  faithfully 
c.xecut-  the  f  »ffice  of  President  of  the 
United  States,  and  will  to  the  best  of 
my  Ability,  preserve,  protect  and  de- 
fend the  Constitution  of  the  United 
States." 

-Section  2.  The  President  shall  be 
Commander  in  Chief  of  the  Army  and 
Na\-y  of  the  United  Slates  and  of  the 
Militia  of  the  several  Stales,  when 
called   into  the  actual   Service  of  the 


'A 

u   II 

n 


i-  ■ 


564  Tin   tNMKO  »rATE»:   A   STIDV    IN    IKTWK ATIONAL  0»CANUATIO!l 


Reftort  of  Ike  Commiltre  on  Slylc. 

principal  officer  in  each  of  the  execu- 
tive department*,  upon  any  iubject  re- 
lating to  the  duties  of  their  re»|)ectivc 
offices,  when  called  into  the  actual  serv- 
ice of  the  United  States,  and  he  shall 
have  power  to  jfrant  reprieves  and  par- 
dons for  offences  against  the  L'nited 
States,  except  in  cases  of  impeachment. 

(«)  He  shall  have  power,  by  and  with 
the  advice  and  consent  of  the  senate, 
to  make  treaties,  provided  two-thirds  of 
the  senators  present  concur;  and  he 
shall  nominate,  and  by  and  with  the  ad- 
vice and  consent  of  the  senate,  shall  up- 
point  ambassadors,  other  public  min- 
isfrs  and  consuls,  judges  of  the  su- 
preme court,  and  all  other  officers  of 
the  United  States,  whose  appointments 
are  not  herein  otherwise  provided  for. 


(b)  The  president  shall  have  power  to 
fill  up  all  vacancies  that  may  hap|)en 
during  the  recess  of  the  senate,  by 
granting  commissions  which  shall  ex- 
pire at  the  end  of  their  next  session. 

Sect.  3.  He  shall  from  time  to  time 
give  to  the  Congress  information  of  the 
state  of  the  union,  and  recommend  to 
their  consideration  such  measures  as 
he  shall  judge  necessary  and  expedient: 
he  may.  on  extraordinary  occasions 
convene  both  houses,  or  either  of  them, 
and  111  case  of  disagreement  between 
them,  with  respect  to  the  time  of  ad- 
journment, he  may  adjourn  them  to 
such  time  as  he  "lall  think  proper:  he 
shall    receive    ambassadors    and    other 


The  ConstilHlion  as  ngned. 

United  States;  he  may  require  the 
( )pinion,  in  writing,  of  the  principal 
Officer  in  each  of  the  executive  Depart- 
ments, upon  any  Subject  relating  to  the 
Duties  of  their  res|)ectivc  Offices,  and 
he  shall  have  Power  to  grant  Reprieves 
and  Pardons  for  Offences  against  the 
United  States,  except  in  Cases  of  Im- 
peachment. 

He  'hall  have  Power,  by  and  with 
the  Advice  and  Consent  of  the  Senate, 
to  make  Treaties,  provided  two  thirds 
of  the  Senators  present  concur ;  and  he 
shall  nominate,  and  \>y  and  with  the  Ad- 
vice and  Consent  of  the  Senate,  shall 
appoint  Ambassadors,  other  public  Min- 
isters and  Consuls,  Judges  of  the  su- 
preme Court,  and  all  other  Officers  of 
the  United  States,  whose  Appointments 
are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  Law : 
but  the  Congress  may  by  law  vest  the 
Apijointment  of  such  inferior  Officers, 
as  they  think  proper,  in  the  President 
alone,  in  the  Courts  of  Law,  or  in  the 
Heads  of   Departments. 

The  President  shall  have  Power  to 
fill  up  all  Vacancies  that  may  happen 
during  the  Recess  of  the  Senate,  by 
granting  Commissions  which  shall  ex- 
pire at  the  End  of  their  next  Session. 
Section  3.  He  shall  from  time  to 
time  giv  to  the  Congress  Information 
of  the  S  ite  of  the  Union,  and  recom- 
mend to  their  Consideration  such  Meas- 
ures as  he  shall  judge  necessary  and 
expedient;  he  may,  on  extraordinary 
Occasions,  -ronvene  both  Houses,  or 
either  of  them,  and  in  Case  of  Disagree- 
ment between  them,  with  Respect  to  the 
Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think 
proper;  he  shall  receive  Ambassadors 


,-■;     S, 


ArnHvtx 


565 


Rrfort  of  the  Ommittfe  on  Sl\l,- 

public  ministers ;  hr  shall  take  c-i  f  th.it 
the  laws  be  faithfully  executed,  and 
•h«ll  commiuion  all  the  ofticers  of  the 
United  States. 

Sfct.  4.  The  president,  vice-presi- 
dent, and  all  civil  officers  of  the  Iniird 
States,  shall  be  removed  from  ottice  c.n 
imfJeachmcnt  for,  and  conviction  of 
treason,  bribery,  or  other  high  crimes 
and  misdemeanors. 

Ill 

Sect.  1.  The  judicial  power  of  the 
United  States,  both  in  law  and  etjuity, 
shall  be  vested  in  one  supreme  court, 
and  in  such  inferor  courts  as  the  Con- 
gress may  from  •  -  ••>  time  ordain  and 
establish.  The  ju  s,  lioth  of  the  su- 
preme and  inferior  courts,  shall  hold 
their  offices  during  gooil  behaviour,  and 
shall,  at  stated  times,  receive  for  their 
services,  a  compensation,  which  shall 
not  be  diminished  during  their  continu- 
ance in  office. 

Sect.  2.  The  judicial  power  shall  ex- 
tend to  all  cases,  both  in  law  and  c(|uity, 
arising  under  this  constitution,  the  l.i^s 
of  the  United  States,  and  treaties  m.idc 
or  which  shall  be  made,  under  their  au- 
thority. To  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  con- 
suls. To  all  cases  of  admiralty  and 
maritime  jurisdiction.  To  controver- 
sies to  which  the  United  States  shall  \k- 
a  party.  To  controversies  between  two 
or  more  States;  between  a  state  and 
citizens  of  another  state ;  between  citi- 
zens of  different  States;  between  citi- 
zens of  the  same  state  claiming  lands 
under  grants  of  different  States,  and 
between  a  state,  or  the  citizei.s  thiTcof. 
and  foreign  States,  citizens  or  siibjects. 


The  Constitution  as  signed 
and  other  public  Ministers ;  he  shall  take 
lare  that  the  Laws  lie  faithfully  exe- 
tntrd.   and   shall    Commission   all   the 
t  'fficers  of  the  United  States. 

Section  4.  The  I'r.sident,  Nice  F'res- 
i'lent  and  all  civil  (  hficers  of  the  United 
States,  shall  be  removed  from  ( Iftice  on 
liiipe.ichment  for.  and  Conviction  of. 
Treason,  i!ril>ery.  or  other  high  Crimes 
and  .Misdemeanors. 

Aktici.e  III 

Section  1.  The  juoicial  f'ower  of  the 
United  .St.ites,  shall  be  vested  in  one 
supreme  Court,  and  in  such  inferior 
C  ourts  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The 
Judges,  both  of  the  supreme  and  infe- 
rior Courts,  shall  hold  their  (  Xfices  dur- 
ing good  r.ehaviour.  and  shall,  at  stated 
Times,  receive  for  their  Services,  a 
Compensation,  which  shall  not  be  di- 
minished during  their  Continuance  in 
Office. 

Section  2.  The  judicial  Power  shall 
extend  to  all  Cases,  in  Law  and  F'tjuity, 
arising  under  this  Constitution,  the 
laws  of  the  United  .States,  and  Trea- 
ties made,  or  which  shall  be  made,  un- 
der tleir  .\uthority  ;  — to  all  Cases  af- 
fecting .Ambassadors,  other  public  Min- 
isters and  Consuls;  —  to  all  Cases  of 
a<!niiralty  and  maritime  Jurisdiction  ;  — 
to  Couirovcrsies  to  which  the  United 
States  sit.ill  Ik-  a  Party:  —  to  Contro- 
versies between  two  or  more  States;  — 
l)etween  a  State  and  Citizens  of  another 
State;  —  between  Citizens  of  ditTerent 
.'States. —  between  Citizens  of  the  same 
Slate  claiming  Lands  under  Cirants  of 
elifferent  States,  and  bet'veen  a  State, 
or  tile  Citi/ens  thereof  .nnrl  foreism 
States,  Citizens  or  Subjects. 


h  \ 
r  I 


it 


566         THE  UNITED  STATES:   A  STUDY   IN    INTERNATIONAL  ORGANIZATION 

Report  of  the  Committee  on  Style. 
In  cases  affecting  ambassadors,  other 

public     ministers     and     consuls,     and 

those  in  which  a  state  shall  be  a  party, 

the  supreme  court  shall  have  original 

jurisdiction.     In  all  the  other  cases  be- 
fore mentioned,  the  supreme  court  shall 

have  appellate  jurisdiction,  both  as  to 

law  and  fact,  with  such  exceptions,  and 

under  such  regulations  as  the  Congress 

shall  make. 

The   trial   of   all  crimes,   except   in 

cases  of  impeachment,  shall  be  by  jury ; 
and  such  trial  shall  be  held  in  the  state 
where  the  said  crimes  shall  have  been 
committed;  but  when  not  committed 
within  any  sUte,  the  trial  shall  be  at 
such  place  or  places  as  the  Congress 
may  by  law  have  directed. 

Sect.  3.  Treason  against  the  United 
State.,  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  tc  their 
enemies,  giving  them  aid  and  comfort. 
No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  con- 
fession in  open  court. 

The  Congress  shall  have  power  to  de- 
clare the  punishment  of  treason,  but  no 
attainder  of  treason  shall  work  corrup- 
tion of  blood  nor  forfeiture,  except 
during  the  life  of  the  person  attainted. 


IV 

Sect.  1.  Full  faith  and  credit  shall 
be  given  in  each  state  to  the  public  acts, 
record.s,  and  judicial  proceedings  of 
every  other  state.  .\iid  the  Congress 
may  by  general  laws  prescribe  the  man- 
ner in  which  such  acts,  records  and  pro- 
ceedings shall  be  proved,  and  the  efTecf 
thereof. 

Seit.  2.     The  citizens  of  each  state 


The  Constitution  as  signed. 
In  all  Cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls,  and 
those  in  which  a  State  shall  be  Party, 
the  supreme  Court  shall  have  original 
Jurisdiction.  In  all  the  other  Cases  be- 
fore mentioned,  the  Supreme  Court 
shall  have  appellate  Jurisdiction,  both 
as  to  Law  and  Fact,  with  such  Excep- 
tions, and  under  such  regulations  as  the 
Congress  shall  make. 

The  Trial  of  all  Crimes,  except  in 
Cases  of  Impeachment,  shall  be  by  Jury ; 
and  such  Trial  shall  be  held  in  the 
State  where  the  said  Crimes  shall  have 
been  committed;  but  when  not  com- 
mitted within  any  State,  the  Trial  shall 
be  at  such  Ilace  or  Places  as  the  Con- 
gress may  by  Law  have  directed. 

Section  3.  Treason  against  the 
United  States,  shall  consist  only  in  levy- 
ing War  against  them,  or  in  adhering 
to  their  Enemies,  giving  them  Aid  and 
Comfort.  No  Person  shall  ^e  convicted 
of  Treason  unless  on  the  Testimony  of 
two  Witnesses  to  the  same  overt  Act, 
or  on  Confession  in  open  Court. 

The  Congress  shall  have  Power  to 
declare  the  Punishment  of  Treason,  but 
no  Attainder  of  Treason  shall  work 
Corruption  of  Blood,  or  Forfeiture  ex- 
cept during  the  Life  of  the  Person 
attainted. 

Article  IV 

Section  1.  Full  Faith  and  Credit 
shall  be  given  in  each  State  to  the  pub- 
lic Acts,  Records,  and  judicial  Proceed- 
ings of  every  other  State.  And  the 
Congress  may  by  general  Laws  pre- 
scribe the  Manner  in  which  such  Acts, 
Records  and  Proceedings  shall  be 
jiroved,  and  the  Effect  thereof. 

Section    2.     The    Citizens    of    each 


APPENDIX 


567 


Report  of  the  Committee  on  Style. 

shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several 
states. 

A  person  charged  in  any  state  with 
treason,  felony,  or  other  crime,  who 
shall  flee  from  justice,  and  be  found  in 
another  state,  shall  on  demand  of  the 
executive  authority  of  the  state  from 
which  he  fled  be  delivered  up,  and  re- 
moved to  the  state  having  jurisdiction 
of  the  crime. 

No  person  legally  held  to  service  or 
labour  in  one  state,  escaping  into  an- 
other, shall  in  consequence  of  regula- 
tions subsisting  therein  be  discharged 
from  such  service  or  labor,  but  sliall  be 
delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labour  may  be 
due. 

Sect.  3.  New  states  may  be  admitted 
by  the  Congress  into  this  union ;  but  no 
new  state  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other 
state ;  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states,  or  parts 
of  states,  without  the  consent  of  the  leg- 
islatures of  the  states  concerned  as  well 
as  of  the  Congress. 

The  Congress  shall  have  power  to  dis- 
pose of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or 
other  property  belonging  to  the  United 
States :  and  nothing  in  this  Constitu- 
tion shall  be  so  construed  as  to  preju- 
dice any  claims  of  the  United  States, 
or  of  any  particular  state. 

Sect.  4.  The  United  States  shall 
guarantee  to  every  state  in  this  union  a 
Republican  form  of  government,  and 
shall  protect  each  of  them  against  in- 
vasion; and  on  application  of  the  legis- 
lature or  executive,  against  domestic 
violence. 


The  Constitution  as  signed. 

State  shall  be  entitled  to  all  Privileges 
a.id  Immunities  of  Citizens  in  the  sev- 
eral States, 

A  Person  charged  in  any  State  with 
Treason.  Felony,  or  other  Crime,  who 
shall  flee  from  Justice,  and  be  found  in 
another  State,  shall  on  Demand  of  the 
executive  Authority  of  the  State  from 
which  he  fled,  be  delivered  up,  to  be  re- 
moved to  the  State  having  Jurisdiction 
of  the  Crime. 

Xo  Person  held  to  Service  or  Labour 
in  one  State,  under  the  Laws  thereof, 
escaping  into  another,  shall,  in  Conse- 
quence of  any  Law  or  Regulations 
therein,  be  tlischarged  from  such  Serv- 
ice or  Labour,  but  shall  be  delivered  up 
on  Claim  of  the  Party  to  whom  such 
Service  or  Labour  may  be  due. 

Section  3.  New  States  may  be  ad- 
mitted by  the  Congress  into  this  Union  ; 
but  no  new  State  shall  be  formed  or 
erected  within  the  Jurisdiction  of  any 
other  State ;  nor  any  State  be  formed 
by  the  Junction  of  two  or  more  States, 
or  Parts  of  States,  without  tiie  Consent 
of  the  Legislatures  of  the  States  con- 
cerned as  well  as  of  the  Congress. 

The  Congress  shall  have  Power  to 
dispose  of  and  make  all  needful  Rules 
and  Regulations  respecting  the  Terri- 
tory or  other  Property  belonging  to  the 
United  States;  and  nothing  in  this  Con- 
stitution siiall  be  so  construed  as  to 
l)rcjudice  any  Claims  of  the  United 
States,  or  of  any  particular  State. 

Section  4.  The  United  States  shall 
guarantee  to  every  State  in  this  Union 
a  Republican  Form  of  Government,  and 
shall  protect  each  of  them  against  Inva- 
sion ;  and  on  .Application  of  the  Legis- 
lat\ire,  or  of  the  Executive  (when  tiie 
Legislature  cannot  be  convened)  against 


I 


I. 


•K 
J 


^fef 


568         THE   UNITED  STATES:   A   STUDY  IN   INTERNATIONAL  ORGANIZATION 

Report  of  the  Committee  on  Style. 


The  Congress,  whenever  two-thirds 
of  both  houses  shall  deem  necessary,  or 
on  the  application  of  two-thirds  of  the 
legislatures  of  the  several  states,  shall 
propose  amendments  to  this  constitu- 
tion, which  shall  be  valid  to  all  intents 
and  purposes,  as  part  thereof,  when  the 
same  shall  have  been  ratified  by  three- 
fourths  at  least  of  the  legislatures  of 
the  sevi'ral  states,  or  by  convention:,  in 
three-fourths  thereuf,  as  the  one  or  the 
other  mode  of  ratification  may  be  pro- 
posed by  the  Congress:  Provided,  that 
no  amendment  which  may  be  made 
prior  to  the  year  1808  shall  in  any  man- 
ner affect  the and section  of 

article 


VI 

All  debts  contracted  and  engagements 
entered  into  before  the  adoption  of  this 
Constitution  shall  be  as  valid  against 
the  United  States  under  this  Constitu- 
tion as  under  the  confederation. 

This  constitution,  and  the  laws  of  the 
United  States  wiiich  sli;ill  be  made  in 
pursuance  thereof :  and  all  treaties 
made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be 
t!ie  supreme  law  of  the  land  ;  and  the 
judfjcs  in  every  state  shall  be  bound 
there')),  any  thing  in  the  constitution 
or  laws  of  any  state  to  the  contrary 
iiut-.\iti;>l.itu]iii". 


The  Constitution  as  signed. 
domestic  Violence. 

Article  V 

The  Congress,  whenever  two  thirds 
of  both  Houses  shall  deem  it  necessary, 
shall  propose  Amendments  to  this  Con- 
stitution, or,  on  the  Application  of  the 
Legislatures  of  two  thirds  of  the  sev- 
eral States,  shall  call  a  Convention  for 
proposing  Amendments,  which,  in  either 
case,  shall  be  valid  to  all  Intents  and 
Purposes,  as  Part  of  this  Constitution, 
when  ratified  by  the  Legislatures  of 
three  fourths  of  the  several  States,  or 
by  Conventions  in  three  fourths  thereof, 
as  the  one  or  the  other  Mode  of  Rati- 
fication may  be  proposed  by  the  Con- 
gress; Provided  that  no  Amendment 
which  may  be  made  prior  to  the  Year 
One  thousand  eight  hundred  and  eight 
shall  in  any  Manner  affect  the  first  and 
fourth  Clauses  in  the  Ninth  Section  of 
the  first  Article ;  and  that  no  State,  with- 
out its  Consent,  shall  be  deprived  of  it's 
equal  Suffrage  in  the  Senate. 

Article  VI 

All  Debts  contracted  and  Engage- 
ments entered  into,  before  the  Adoption 
of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this 
Constitution,  as  under  the  Confedera- 
tion. 

This  Constitution,  and  the  Laws  of 
the  United  States  which  shall  be  made 
in  Pursuance  thereof ;  and  all  Treaties 
made,  or  which  shall  be  made,  under  the 
Authority  of  the  United  States,  shall 
be  the  supreme  Law  of  the  Land ;  and 
the  Ji'.dges  in  every  State  shall  be  bound 
thereby,  any  Thing  in  the  Constitution 
or  Laws  of  any  State  to  the  Contrary 

nnt'.vithst.itvlin!'. 


APPENDIX 


569 


l\\ 


Report  of  the  Committee  on  Style. 

The  senators  and  representatives  be- 
forementioned,  and  the  members  of  the 
several  state  legislatures,  and  all  execu- 
tive and  judicial  officers,  both  of  the 
United  States  and  of  the  several  States, 
shall  be  bound  by  oath  or  affirmation,  to 
support  this  constitution;  but  no  reli- 
gious test  shall  ever  be  required  as  a 
qualification  to  any  offire  or  public  trust 
under  the  United  States. 

VII 

The  ratification  of  the  conventions  of 
nine  States,  shall  be  sufficient  for  the 
establishment  of  this  constitution  be- 
tween the  States  so  ratifying  the  same. 


The  Constitution  as  signed. 

The  Senators  and  Representatives 
before  mentioned,  and  the  Members  of 
the  several  State  Legislatures,  and  all 
executive  and  judicial  Officers,  both  of 
the  United  States  and  of  the  several 
States,  shall  be  bound  by  Oath  or  Af- 
firmation, to  support  this  Constitution; 
but  no  religious  Test  shall  ever  be  re- 
(luired  as  a  Qualification  to  any  Office 
or  public  Trust  under  the  United  States. 

Article  \TI 

The  Ratification  of  the  Conventions 
of  nine  States,  shall  be  sufficient  for  the 
Establishment  of  this  Constitution  be- 
tween the  States  so  ratifying  the  Same. 


i  I 


i     5    K 


II    I 


'i'f" 


It 

f4 


570  THE   UNITED  STATES:   A   STUDY  IN    INTERNATIONAL  ORGANIZATION 


X     LETTER  TRANSMITTING  THE  CONSTITUTION  TO  CONGRESS, 

SEPTEMBER  17,  1787.' 

We  have  now  the  honor  to  submit  to  the  consideration  of  the  United  States 
in  Congress  assembled,  that  Constitution  which  has  appeared  to  us  the  most 
adviseable. 

The  friends  of  our  country  have  long  seen  and  desired,  that  the  power  of 
making  war,  peace,  and  treaties,  that  of  levying  money  and  regulating  commerce, 
and  the  correspondent  e.cecutive  and  judicial  authorities  should  be  fully  and 
eflFtctually  vested  in  the  general  government  of  the  Union :  But  the  impropriety 
of  delegating  such  extensive  trust  to  one  body  of  men  is  evident  —  Hence  results 
the  necessity  of  a  different  organization. 

It  is  obviously  impracticable  in  the  federal  government  of  these  states,  to 
secure  all  rights  of  independent  sovereignty  to  each,  and  yet  provide  for  the 
interest  and  safety  of  all :  Individuals  entering  into  society,  must  give  up  a  share 
of  liberty  to  preserve  the  rest.  The  magnitude  of  the  sacrifice  must  depend  as 
well  on  situation  and  circumstances,  as  on  the  object  to  be  obtained.  It  is  at  aa 
times  difficult  to  draw  with  precision  the  line  between  those  rights  which  must  be 
surrendered,  and  those  which  may  be  reserved :  and  on  the  present  occasion  this 
difficulty  was  encreased  by  a  difference  among  the  several  states  as  to  their  situ- 
ation, extent,  habits,  and  particular  interests. 

In  all  our  deliberations  on  this  subject  we  kept  steadily  in  our  view,  that  which 
appears  to  us  the  greatest  interest  of  every  true  American,  the  consolidation  of 
our  Union,  in  which  is  involved  our  prosperity,  felicity,  safety,  perhaps  our  na- 
tional existence.  This  imjiorta-  •  consideration,  seriously  a.id  deeply  impressed 
on  our  minds,  led  each  state  in  the  Convention  to  be  less  rigid  on  points  of  inferior 
magnitude,  than  might  have  been  otherwise  expected ;  and  thus  the  Constitution, 
which  we  now  present,  is  the  result  of  a  spirit  of  amity,  and  of  that  mutual 
deference  and  concession  which  the  peculiarity  of  our  political  situation  rendered 
indispensible. 

That  it  will  meet  the  full  and  entire  approbation  of  every  state  is  not  perhaps 
to  be  expected ;  but  each  will  doubtless  consider,  that  had  her  interest  been  alone 
consulted,  the  consequences  might  have  been  particularly  disagreeable  or  injuri- 
ous to  others ;  that  it  is  liable  to  as  few  exceptions  as  could  reasonably  have  been 
expected,  we  hope  and  believe :  that  it  may  promote  the  lasting  welfare  of  that 
country  so  dear  to  us  all.  and  secure  her  freedom  and  happiness,  is  our  most 
ardent  wish. 

^Documentary  History,  Vol.  ii,  pp.  1-2. 


APPENDIX 


571 


XI.    RESOLUTION  OF  THE  CONVENTION,  SEPTEMBER    17.   1787, 

THAT  CONGRESS  TRANSMIT  THE  CONSTITUTION   TO 

THE  STATES  FOR  RATIFICATION.* 


Resolved,  That  the  preceeding  Constitution  be  laid  before  the  United  States 
in  Congress  assembled,  and  that  it  is  the  Opinion  of  this  Convention,  that  it  should 
afterwards  be  submitted  to  a  Convention  of  Delegates,  chosen  in  each  State  by 
the  People  thereof,  under  the  Rei  ..mmendation  of  its  Legislature,  for  their  Assent 
and  Ratification; '  and  that  each  Convention  assenting  to,  and  ratifying  the  Same, 
should  give  Notice  thereof  to  the  United  States  in  Congress  assemliled.  Resolved, 
That  it  is  the  Opinion  of  this  Convention,  that  as  soon  as  the  Conventions  of  nine 
States  shall  have  ratified  this  Constitution,  the  United  States  in  Congress  assem- 
bled should  fix  a  Day  on  which  Electors  should  be  apixiinted  by  the  States  which 
shall  have  ratified  the  same,  and  a  Day  on  which  the  Electors  should  assemble  to 
vote  for  the  President,  and  the  Time  and  Place  for  commencing  Proceedings 
under  this  Constitution.  That  after  such  Publication  the  Electors  should  be  ap- 
pointed, and  the  Senators  and  Representatives  elected :  That  the  Electors  should 
meet  on  the  Day  fixed  for  the  Election  of  the  President,  and  should  transmit  their 
Votes  certified,  signed,  sealed  and  directed,  as  the  Constitution  rerjuires.  to  the 
Secretary  of  the  United  States  in  Congress  assembled,  that  the  Senators  and" 
Representatives  should  convene  at  the  Time  and  Place  assigned;  that  the  Senators 
should  appoint  a  President  of  the  Senate,  for  the  sole  PuriJ<jse  of  receiving,  ojk  n- 
ing  and  counting  the  X'otes  for  President;  and,  that  after  he  shall  be  chosen,  the 
Congress,  together  with  the  President,  should,  without  Delay,  proceed  to  excute 
this  Constitution. 

By  the  Unanimous  Order  of  the  Convention 

G"     WASHINGTON  Presid' 
W.  J.ACKsoN  Secretary. 

»  Documentary  History  of  the  C"nstitu!ion,  Vol.  ii,  pp.  20-21. 

'In  compliance  with  this  resolution  l' e  ConK.es*  on  Sipitmbi  r  28.  1/87.  transmittei]  The 
Constitution  to  the  States,  which  called  conventions  and  rat  t'ld  it  in  the  folinwins  'irder: 
Delaware.  Decemtwr  7,  1787:  Pennsylvania.  Dectinhcr  12,  17'<7;  New  Jersey.  Drremtier  18, 
1787:  Georgi...  January  2.  1788:  Connecticut.  Jannarv  0.  1"SS<:  ^!a-s^lch■ll■etts.  IVIir  inrv  6, 
1788;  Marvlmd,  .\pril  28,  1788:  Smith  Carolina,  Mav  2,\  1788;  N,  w  H.-,mp'hire.  J  ine  21, 
1788:  Virginia,  June  26.  1788;  and  New  Y.irk.  Jidy  2f,.  '788  Tlie  Pre^idein  i-  formed  Con- 
ffress.  on  January  28,  1700,  that  North  Carolina  hnd  rnf^'crl  the  r.in-:ititioii  N^x.-mLer  21. 
1789;  and  he  informed  Congress  on  June  1.  1790.  that  Kho.je  Island  hid  ratit'.t'!  t':i»-_ror-ti- 
tution  May  29.  1790.  V'ermonf.  in  comntion.  rati'"ed  the  ConstitMtion  Jrtnuarv  10,  1780.  an'l 
was.  liy  an  act  of  Conere^s  approved  IVbruarv  IP,  \7'A.  "received  and  Eomittcd  into  this 
Union  as  a  new  and  entire  memlxrr  of  i!  e  L'nited  States." 


i. 


D.    AMENDMENTS  TO  THE  CONSTITUTION. 


I.    THE  FIRST  TEN   AMENDMENTS  TO  THE  CONSTITUTION   IN 
LIEU  OF  A  BILL  OF  RIGHTS. 

Articles  in  Addition  To,  and  Amendment  Of,  the  Cokjtitution  of  the 
United  States  of  America,  Proposed  by  Congress,  and  Ratified  by  the 
Legislatures  of  the  Several  States  Pl-rslant  to  the  Fifth  Article 
of  the  Original  Constitution. 

Article  I.' 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercises  thereof ;  or  abridging  the  freedom  of  speech,  or  of  the 
press ;  or  the  right  of  the  people  peaceably  to  assemble,  and  to  petition  the  Gov- 
ernment for  a  redress  of  grievances. 

Article  II. 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a  free  State,  the 
right  of  the  people  to  keep  and  bear  Arms,  shall  not  be  infringed. 

Article  III. 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without  the 
consent  of  the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

Article  IV. 
The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and  no 
Warrants  shall  issue,  but  upon  probable  cause,  supported  by  Oath  or  affirmation, 
and  particularly  describing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

Article  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous  crime, 

unless  on  a  presentment  or  indictment  of  a  Grand  Jury,  except  in  cases  arising 

in  the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual  service  in  time  of 

\\  ar  or  public  danger ;  nor  shall  any  person  be  subject  for  the  same  offence  to  be 

twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  Criminal  Case 

to  be  a  witness  against  himpelf.  nor  be  deprived  of  life,  liberty,  or  property, 

without  due  process  of  law;  nor  shall  private  property  be  taken  for  public  use, 

without   just   compensation. 

'The  first  ten  amendmints  to  the  Cotistitvttion  of  the  United  States  were  proposed  to  'h' 
leRislatiires  of  the  several  .States  by  the  First  Congress,  on  the  25th  of  September,  1/89. 
They  were  ratified  by  the  followinR  States,  and  the  notitiiations  of  ratification  by  the  (gov- 
ernors thereof  were  successively  communicated  by  the  Pre'-ident  to  Congress:  New  Jersey, 
NovenilHT  20,  1789;  Marvlaml,  Ueccmlier  19,  1789;  North  Carolina,  December  Z2.  1789;  Soitli 
Carolina.  January  19,  1790;  New  Hampshire,  January  25.  1790;  Delaware.  January  28,  179(1; 
Pennsylvania,  March  10.  1790;  New  York.  March  27,  1790;  Rhode  Isl.iud,  June  15,  1790; 
Verniont,  N--vcmk.trr  3,  1791,  ar-i  Virginia.  Ocrenihrr  15,  179!  There  is  ni  ev-dencc  on  tlw 
journals  of  Congress  that  the  legislatures  of  Connecticut,  Georgia,  and  -Massachusetts  rati- 
fied them. 

^-2 


AI'I'ENDIX  1J7J 

Article  VI, 
.„^  kI-  "*"'.'"!'  P™''*^^""""'''  «•'«>  a«"sed  shall  enjoy  the  right  to  a  speedy 
i;  Ii''k  '^  •  ''y-^".""P^"i-'«l  J"^y  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been  previously  ascertained 
by  law  and  to  be  mformed  of  the  nature  and  cause  of  the  accusation ;  to  be  con- 
fronted with  the  witnesses  ajrainst  him;  to  have  compulsory  process  for  obtaining 
Witnesses  m  his  favor,  and  to  have  the  Assistance  of  Counsel  for  his  defence 

Article  VII. 

AalVt'  '*  tTT''-  \T  "^""  "''  """"  *"  -^""'^"versy  shall  exceed  twenty 
1  n  L    1"^  '""'  ^^  ^"'^'  ''^''"  *'*■  P^^'^"^"'*-  ■■'"'1  "o  f-^«  trie.!  by  a  jury 

shal   be  otherwise  re-exammed  in  any  Court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law. 

Article  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted. 

Article  IX. 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the  people. 

Article  X. 

WuV'L^'''''Tj^'^"^'"^  '°  '^'  ^'"''"^  -'^'=''"  ^y  '^'  Constitution,  nor  pro- 
hibited by  It  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people. 


I' 


I: 
I 


II,     SUBSEQUENT  AMENDMENTS  TO  THE  CONSTITUTION. 


Article  XI.' 
The  Judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecute.!  against  one  of  the  United 

StetT  "'  "^  ^"°'''^''  ^''*'^'  "^  ^^'  *-"'''"■■"'  °'  ^"''^"-"''^  °*  ''">'  ^"^^'S" 

.Article  XII.= 
The  Electors  shall  meet  in  their  respective  states,  and  vote  bv  bali.n  for  Presi- 
dent and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the 
same  state  with  themselves :  they  shall  name  in  their  ballots  the  person  vot.nl  for  as 
t  resident,  and  in  distinct  ballots  the  per.son  voted  for  as  \-ice-President,  anrl  thev 
shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons 
aJ.I^u  ^'""""'h  amondmeni   w.is  Heclared  in  a  me«njc  fmm  the   President  tn  C.msre^, 

tht^tconT^M^l/'^Z'^TT-  T  •"'■"  "^  '^  "'i'^'"^'  •'''•■''  P»"=;"Pl'  "f  the  fir.t  section  of 
nfW^^K  lonj  .  u''^'"''Y''''  '"  '  Pr-lamation  of  the  Secretary  of  .Strue,  ,late  1  the  .'5tli 
of  September.  1804,  to  have  been  ratii.eH  hy  the  kgisblurcs  of  tl.rcc  fr.unh.    .    ,'e  Suic, 


IWi- 


'    i 


574  THE  UNITED  STATES:   A   STtDV   IN    INTERNATIONAL  ORGANIZATION 

voted  for  as  Vice-President,  and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  President  of  the  Senate: -The  President  of  the 
'Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates  and  the  votes  sh-Ml  then  be  counted;  — The  person  having  the 
greatest  number  of  votes  for  President,  shall  be  the  President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed;  and  if  no  person  have 
such  majority,  then  from  the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the  House  of  Representatives 
shall  choose  immediately,  bv  ballot,  the  President.     But  in  choosing  the  President, 
the  votes  .hall  be  takiu  by  states,  the  representation  from  each  sUte  having  one 
vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from 
two-lhinls  of  the  states,  and  a  majority  of  all  the  states  shall  be  necessary  to  a 
choice.     And  if  the  House  of  Representatives  shall  not  choose  a  President  when- 
ever the  right  of  choice  shall  devolve  upon  them,  liefore  the  fourth  day  of  March 
next  fnllowinK.  then  the  Vice-President  shall  act  as  President,  as  in  the  case  of 
the  death  or  other  constitutional  disability  of  the  President.- Tht  person  having 
the  greatest  number  of  votes  as  Vice-President,  shall  be  the  Vice-President    if 
such  number  Ik;  a  majority  of  the  whole  number  of  Electors  api^inted.  and  if 
no  person  have  a  majority,  then  from  the  two  highest  numbers  on  the  list,  the 
Senate  shall  choose  the  X'ice- President :  a  quorum  for  the  p.irpose  shall  consist  of 
two-thirds-of  the  whole  number  of  Senators,  and  a  majority  of  the  whole  number 
shall  be  necessary  to  a  choice.     But  no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  \-ice-President  of  the  United  States. 

Article  XIII.* 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  :he  United  States,  or  any  place  subject  to  their  jurisdiction. 

SixTioN  2.    Congress  shall  have  power  to  enforce  this  article  by  appropriate 

legislation. 

Article  XIV.' 

Sf.ctk.n  1.  All  persons  boin  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  siiall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  inmuinitie>  of  citizens  of  the  United  States:  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  without  due  process  of  law ; 
nor  deny  to  any  jierson  within  its  jurisdiction  the  equal  protection  of  the  laws. 

Si-CTioN  2.  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respcciive  numbers,  counting  the  whole  number  of  person^  in 

1  The  thirteenth  ^.tncdinent  «..s  declare.!,  in  a  pro.;la:nation  of  the  Secre-ary  of  State, 
dated  the  IStli  of  December,  1865,  to  have  been  raUf.cu  by  the  legislatures  of  twenty-seven 

°^  •^^?;'7onrU.em^amen,!men,  was.  in  a  proclamation  of  the  Secretary  of  State,  dated 
the  2Mh  of  July.  !«,«,  declared  to  have  been  ratihed  by  the  legislatures  of  thirty  of  the 
thirt\->ix  St.itcs. 


APPENDIX 


575 


each  State,  excluding  Indians  not  taxed.  Rut  when  the  right  to  vote  at  any 
election  for  the  choice  of  electors  for  fVesident  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  Executive  and  Judicial  officers  of  a 
State,  or  the  members  of  the  legislature  thereof,  is  denied  to  anv  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of  age.  and  citizens  of  the 
Lnited  States  or  m  any  way  abridged,  except  for  particiimtion  in  rebellion,  or 
other  crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the  whole  number  of  male 
cittzens  twenty-one  years  of  age  in  such  State, 

Skction  3.  Xo  person  shall  be  a  Senator  or  Representative  in  Congress  or 
elector  of  {'resident  and  Nice-President,  or  hold  any  office,  civil  or  military,  under 
the  Lnitcd  States,  or  under  any  State,  who.  having  previously  taken  an  oath 
as  a  member  of  Congress,  or  as  an  officer  of  the  United  States,  or  as  a  member  of 
any  State  legislature,  or  as  an  executive  or  judicial  officer  of  anv  State  to  sup- 
port the  Constitution  of  the  United  States,  shall  h.ve  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to  the  enemies  thereof  Cut 
Congress  may  by  a  vote  of  two-thirds  of  each  House,  remove  such  disability. 

Sfci  ion  4.  The  validity  of  the  public  debt  of  the  United  States,  authorized 
by  law.  including  debts  incurred  for  payment  of  j^en.ions  and  bounties  for  services 
in  suppressing  insurrection  or  rebellion,  shall  not  be  (lucstioned.  Rut  neither  the 
I  nited  States  nor  any  State  shall  as.sume  or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave :  but  all  such  debts,  obligations  and  claims  shall 
be  held  illegal  and  void. 

S--CTION  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate  legis- 
lation, the  provisions  of  this  article. 


M 


!' 


Article  X\'.' 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shal'  not  he 
denied  or  abridged  by  the  United  States  or  by  any  State  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

Sfction  2.  The  Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation. 


Article  X\'I.» 

The  Congress  shall  have  power  to  lay  and  collect  taxes  on  incomes,  from 
whatever  source  derived,  without  .ipportionnient  among  the  several  States,  and 
without  regard  to  any  census  or  enumeration. 

^u!.I''t/''il7n'^^T"'''"u'"'  »»\'|eS'*.''<^'^','"  •■•  P'-oclam.ition  of  the  Secretary  of  State,  d.ited 
slates  """        ''  '^•K'5'3""-''s  '^f  twenty-nine  of  the  thirty-seven 

>  .'T?-''i,''''""*"lJ'  •'"'^"dment  was  declared,  m  a  proclamation  by  the  Secretary  of  State 
dated  |ebruary  25,  1913,  to  have  been  ratilied  by  the  lefjislatures  of  thirtv-ei?ht  of  the  forty- 
ci£i;t  states.  ■      '^  ^  ^ 


*■■  i 

i 


576        THE  UNITED  STATES:  A  STUDY  IM   IMTEEKATIOMAL  OEOANUATIOII 

Abticle  XVII.' 

««)  The  Senate  of  the  United  St««  shall  be  composed  of  two  Senators  from 
each  State,  elected  by  the  people  thereof,  for  six  years ;  and  e«:h  Senator  .hall 
Tave  one  vote.  The  electors  in  each  State  shall  have  the  qual.ficat.ons  requ.s.te 
for  electors  of  the  most  numerous  branch  of  the  State  legislatures. 

<»>  When  vacancies  happen  in  the  represenUtion  of  any  State  in  the  benate. 
the  executive  authority  of  such  State  shall  issue  writs  of  elect.on  to  fill  such 
vacancies-  Prmidcd.  That  the  legislature  of  any  Sute  may  empower  the  execu- 
tive  thereof  to  make  temporary  appointments  until  the  people  fill  the  vacanc.es  by 
election  as  the  legislature  may  direct.  ,.      ,     .  ..^ 

«»  This  amendment  shall  not  be  so  construed  as  to  aflFect  the  electton  or  term 
of  any  Senator  chosen  before  it  becomes  valid  as  part  of  the  Constitution. 

Article  XVIII.' 

Section  1  After  one  year  from  the  ratification  of  this  article  the  manu- 
facture sale,  or  transportation  of  intoxicating  liquors  within,  the  .mportat.on 
thereof  into,  or  the  exportation  thereof  from  the  United  States  and  »»  territory 
subject  to  the  jurisdiction  thereof  lor  beverage  purposes  is  hereby  prohibited. 

Sec.  2.  The  Congress  and  the  several  States  shall  have  concurrent  power 
to  enforce  this  article  by  appropriate  legislation.  .     ^  „  .         .  .„  ,,,.fi^j 

Sec  3  This  article  shall  be  inoperative  unless  it  shall  have  been  ratified 
as  an  amendment  to  the  Constitution  by  the  legislatures  of  the  several  States, 
as  provided  in  the  Constitution,  within  seven  yrtirs  from  the  date  of  the  sub- 
mLsion  hereof  to  the  States  by  the  Congress. 

forty-«ight  States. 


I 

li 


i? 


n 


INDEX 


I   : 


'.".  f 

i." 

i..  :' 

I  ' 


«;     I 


N| 


n 


INDEX 


M 


Activt.  Thf,  cut  of,  219-22,  341. 

Adamt,  John,  Maitachuirtts  delegate  to  firti 
Cofllinciilal  CuiigreH.  2J;  vitwi  of,  re- 
•ptcting  N'avigaiion  Acu  ami  Act*  of 
Irailc.  .'6;  iccondcd  Lee'»  niuimn  (i)r  a 
dcclaraliun  of  imicpcndentc,  2V;  »cconilfd 
tnotum  for  appotmiiu'iit  of  Washington  ai 
coitimandcrin-chief,  J9,  memlxr,  drafting 
committee.  Declaration  of  Independence, 
29,  JO,  JO  ni)tc;  on  louthern  Sfatet,  41; 
on  MaMachusctts  act  of  November  10, 
1775,  ettabjithing  a  prize  juri'diction, 
21fi 

Adams.  Samu:l,  leader,  Massachutetti  Houk 
of  Kepretentativri,  2J,  delegate  to  firjt 
Continental  C'oiigresj,  2J;  in  favor  of 
amendments  to  Coiislilution,  JIO. 

Admiralty  Courts,  in  colonies,  21  J,  218;  pro- 
visions for,  under  Confederation,  214  tl 
tfi/.,  of  Pennsylvania,  verdict,  case  of  Tht 
Ailaw  220,  ?21  ;  appeal  to  t.ongress  from, 
221 ;  appeal  from,  to  Court  of  Appeali 
in  Cases  of  Capture,  224. 

Admiralty  jurisdiction,  judicial  power  of 
United  Stales  exlenii^^  to  cases  of,  212, 
447,  499.  law  obtaining  in  courts  of,  447, 
4M;  District  Court  of  United  States  a 
court   of,  447-8. 

AJniiision  of  new  S'ates.  p'ovisiun  (or,  Ran- 
dolph plan.  159;  provision  for,  Pitcerson 
plan.  178;  the  N'orthwest  Ordinance.  286-8; 
Compact  between  people  of  States  and  of 
N'orlluveit  Territory,  288-91  :  attitude  of 
large  States  toward,  291 ;  debate  concern- 
ing, in  Federal  Convention,  293-4 ;  equality 
of  new  Slates.  294;  rights  of  existing 
States  safeguarded,  294;  right  of  Con- 
gress to  govern  territories  until  their  ad- 
mission to  union,  295. 

Adventurers  and  Planters  of  the  City  of 
London  for  the  First  Colony  in  Virginia. 
Sft  London  Ci  mfany 

Albany  Congress,  1754,  proposed  by  Great 
Britain.  11;  colonies  representtil  at.  11; 
sentiment  for  union  in,  11;  adoption  of 
Franklin's  plan  by,  11  .SVc  also  f'rant- 
linS  Plan.  1754 

Albany  Plan.    See  Franklin's  Plan.  1754. 

Ambassadors,  how  nominated  and  appointed, 
199,  27J-4;  received  by  president.  199; 
power  of  judiciary  to  pass  upon  cases  af- 


fecting,  212,  2S6.  262.  263.  398.  399,  403. 
416-17. 
Amendments,  to  Stale  coniiitutiont,  139;  |o 
Articles  of  Coi  federation,  5J-4,  57,  145-7. 

Amendmentj  to  (.onjtiiuiion,  (irst  ten  a  bill 
of  riglil,,  40.  1.17.  .(.'4  el  se^  ;  piovi- 
•lons  for.  n'j.  2'W.t(iii;  unanimous  cm- 
sent  of  States  not  necessary,  2V9;  right 
of  sma'i  Stales  to  e(|ualily  not  subject 
to,  J(MJ;  meili.ids  of.  300  tl  ttq  ;  power 
to  make.  .104  3  Conslilulion  ratified  by 
certain  Stales  under  condition  of,  309  tl 
seq  .  moved  in  first  4e»si.,ii  of  Coiigresi 
under  Constitution.  J2.i  .•(  j,,/.;  rrspert- 
ing  a  bill  of  rights,  324;  respectinu  rela- 
tion of  Stales  to  union,  .?.'5 ,  before  the 
Senate.  iiU .  adiKd  to  Itxi  of  Constitu- 
tion, .12ft;  valiir  of.  J 10:  il,.\,nili  aitieiid- 
nient.  respectjim  itiiniui:ity  of  States  from 
suit.  4^lS;  ratiluati.'ii  of,  by  St.iles.  57 J  ft 
notes,  te.xt  of.  i7Z  ft 

Ames  t'.  Kansas,  case  of,  416-18 

American  Kevoliti-.n.  object  -.f.  10;  .Monroe 
on  causes  ot  success  of.  3J;  Kngl-sh  alti- 
tude respecting  relation,  with  r<,lonies, 
cause  of,  6ft;  colonies  independent  of  cath 
other  liefore.  !25 .  resnlis  of,  confirmed  by 
adoption  of  Constitution,  126:  steps  taken 
to  prevent  anarchy  during,  17;  JO 

Anarchy  during  Revolution,  steps  taken  to 
prevent,   l.^i  JO. 

Annapolis  Conveiilior.  17,%.  convocation  of. 
56.  145:  delegates  to.  56:  unatithori/ed  by 
Congress.  56.  ,s7 ;  only  five  States  rep- 
resented at.  56.  14ft:  another  conven- 
tion proposed  by.  57-8.  151,  1»>.:  ricom- 
mendcd  framing  of  a  Constitution.  IJO. 
146.  15');  demamls  of  commerce  and  navi- 
gation considered  hy.  145-6,  K^ 

Anne,  Queen,  affirmed  report  of  Commis- 
sion, case  of  Penn  v.  lialtimore,  124. 

Appeal,  Courts  of,  in  Delaware,  126,  139; 
of  colonies  in  Rener.il.  Mi  U8;  in'  \cw' 
York.  139:  in  Virginia.  4ii5.  Sec  also 
Court  of  Appeals  in  Ca-e-s  ..f  Capture. 

Appeal.  I^rds  of.  opinion  of,  respecting  a 
local  law  contrary  to  English  common 
law.  97.   121. 

.Appeals,  Congressional  Coi:imit«»e  on.  See 
Committee  on  ,\ppeals. 

Appeals    from    the    Plantatic         Sec   Com- 


580 


INDEX 


mittee  for  Hearing  Appeals  from  the  Plan- 
tations. 
Arbitration,  considered  in  relation  to  estab- 
lishmrnt  of  Supreme  Court,  270;  subnus- 
sion  of  political  questions  to,  270-1,  271 
note. 
Aristotle  on  justice,  211,  213. 
Arkansas,  constitution  of,  4S7-8. 
Army,  power  of  Congress  to  raise  and  mam- 
tain  43,  167 ;  president  commander-in-chief 
of,  167,  197;  not  to  be  kept  by  States  in 
time  of  peace,  210,  212. 
Arnold,   Welcome,   member   of   court,   case 

of  Pennsylvania  f.  Connecticut,  232,  233. 
Articles  of  Confederation,  Dickinson's  draft 
of,  18,  40.  41-2,  237;  union  created  by,  34, 
58-60 ;  independence  regulated  by,  40 ;  rati- 
fication of,  40,  SO,  53.  58,  59.  210,  214,  292, 
292  note,  305 ;  existing  forms  of,  41 ;  sum- 
mary  of,   42-S:    treaty-making   provisions 
under.  43,  44.  49.  198    note.  248;  legisla- 
tive powers  conferred  by,  43   et  seq..  137, 
160   173,  341;  executive  powers  conferred 
by    43    t'l  seq..  160,  341  ;  judicial  powers 
conferred  by,  44,  45,   109.   "9  note,   126, 
160,  210  et  s,-q..  229  W  seq..  247-9  268^. 
341-2  455-7:  defects  of.  45-6,  145.  157.  160, 
165-6,  194.  200,  247-9,  305;  excellences  of, 
46-7;'   revision    of,    original    pun><>se    of 
Federal  Convention,  47.  53.  57-8,  130.  160, 
247,  299,  international  sisnificance  of,  47; 
Madison's   summary  of  the   weakness  of, 
47-53;  disratitfactinn  concerning,  S3;  four 
proposals  to  amend,  53-4;  replaced  by  Con- 
stitution, 53,  58,  130,  147,  161 :  amendments 
to.  57,  145-7,  299;  a  reversion  to  written 
charters,  84;  certain  provisions  of,  incor- 
porated into  Constitution,  131  ;  equality  of 
votes  of   States   under,   151,   152;   correc- 
tion and  enlargement  of,  proposed  by  Ran- 
dolph. 158-9;  certain  rights  of   States  re- 
nounced  by,    160,   210;    Patterson   plan    a 
revision  of.  164,  177-8;  part  of  the  "law 
of  the  land"  of  each  State,  277;  text  of, 
494-51)2.    See  also  Confederation. 
Assemblies.    See  Representative  Assemblies. 
Atherton  purchase,  103  4,  109. 

Bacon.  Sir  Francis,  second  Virginia  charter, 
drafted  by,  71;  third  Virginia  charter, 
drafted   by,   72. 

BaiJ,  In  re.  440  note. 

Baldwin,  Abraham,  vote  and  views  of,  re- 
specting reprtsen^ation  in  the  Senate,  176, 
176  note ;  member,  compromise  committee. 
Senate  suffrage  controversy,  185. 

Baldwin.  Mr.  Justice  (Henry),  on  distinction 
between  political  and  judicial  questioiij, 
386-7,  420-4;   on  determination  of   juris- 


diction, 401-2;  on  extent  of  judicial  power 
of  the  United  States,  405. 

Baltimore,  Lord,  agreement  of,  with  sons 
of  Penn,  1732,  101,  124;  grant  of  Mary- 
land to,  121.    See  also  Penn  v.  Baltimore. 

Bancroft,  George,  on  representative  assem- 
blies, 84  note;  on  boundary  dispute  in- 
volving existence  of  Vermont,  238,  239. 

Bank  of  United  States  v.  Planters'  Bank 
of  Georgia,  464-S. 

Bankrupt  Act,  1867,  416. 

Beard,  Charles  A.,  on  sentimekit  in  Federal 
Convention     respecting    judicial    control, 

362-3.  .     .  ,.    .       J 

Beasley,  Mr.  Chief  Justice,  jurisdiction  de- 
fined by,  400. 
Bedford,  Gunning,  views  of,  respecting  equal- 
ity of   States  in  legislature,   183-4;  mem- 
ber of  compromise  committee.  Senate  suf- 
frage  controversy,   185. 
Beers  v.  State  of  Arkansas,  457-8. 
Bennington,  battle  of,  239. 
Benson,   Egbert,  delegate  of   New   York   to 
Annapolis  Convention,  56;  member  court. 
South  Carolina-Georgia  boundary  dispute, 
237 
Berkley  of   Stratton,  Lord,  grant  of   New 

Jersey  to,  116. 
Bermuda  Island,  grant  of,  to  London  Com- 
pany, 72. 
Betsey.  The,  case  of,  447. 
Beverly,    Robert,    on    representative    assem- 
blies  in   Virginia,  76,  84  note. 
Bill  of  Rights,  first  ten  amendments  to  Con- 
stitution a,  46.  137,  324    i-(  seq.;  prefixed 
to  State  constitutions,  137;  of  1689  (Eng- 
lish),  138;  of   Massachusetts.  133  S,  140; 
of  Virginia,  135,  308,  313,  328. 
Bills  of  credit,  power  to  emit,  given  to  Con- 
gress, 43. 
Blackstone,  Sir  William,  on  nn  .Is  of  con- 
quest,  91 ;    on   dependent    dominions,   93 ; 
works  of,  consulted  by   framcrs  of  Con- 
stitution. 439;  on   international  and  com- 
mon law,  439.  440. 
Blair,  Justice,  Circuit  Court  for  District  of 
Pennsylvania,  350;  opinion  of,  respecting 
the  unconstitutionality  of  an  act  of  Con- 
gress, 316. 
Blankard  v.  Oaldy,  92-3,  9.5. 
Board    of    Trade,    opinion    respecting    New 
Jersey  Boundary  .\cx.  of  1748,  111-15,  117; 
opinion  respecting  New  York-Connecticut 
boundary  agreement,  114;  colonial  bound- 
ary   disputes    referred    to,    118   note,    119 
note;  reference  to,  of  laws  in  excess  of 
charter  grants,  120;        ?  of  Lechmere  v. 
Winthrop  not   refei         to,   120. 
Boundary  disputes,  ba;      upon  an  agreement, 


INDEX 


581 


101,  114,  121-5,  386-7,  420-1;  between  a 
citizen  and  a  Gt-te,  101 ;  in  absence  of  an 
enforcible  agreement,  109-18;  how  deter- 
mined. 118  note.  119  note,  125,  230,  422; 
provision  of  .■\r'ict"S  of  Confederation  re- 
specting, 229:  sp"!  l^  'fpiporary  judicial 
commission?  _.''.'  r;  . .  ,•  ;  nid;  justiciable 
by  Constitu-  "  I,  27),  41'  4_.;  ■  judicial 
in  nature.  .'  ■  >-7  l.nsiish  pre  l^-nts  and 
cases,  421-2.  ;'i!i  >  :■  i-  ird  ''•''  '  lore.  101, 
121-5.  386.  38  . -^-i.  -IM  ;  Huldc;  jiid  Green 
petition.  101  9;  oeiAeer.  b'^sschusetts  and 
New  Hampshire.  118  note.  421:  Massachu- 
setts and  New  York,  234  6,  237;  Massa- 
chusetts and  Vermont.  238-41 :  New  Hamp- 
shire and  Vermont.  238-41 ;  New  York  and 
Connecticut,  114.  386:  New  York  and 
Massachusetts.  118  note;  New  York  and 
New  Jersey.  109-18;  New  York  and  Ver- 
mont. 238-41 ;  North  Carohna  and  South 
Carolina,  118  note;  North  Carolina  and 
Virginia,  118  note,  119  n  >te ;  Pennsylvania 
and  Connecticut,  231-4,  237;  Pennsylvania 
and  Virginia.  239.  241-2,  243;  Rhode  fs- 
land  and  Connecticut,  118:  Rhode  Island 
and  Massachusetts.  118.  119  note,  125. 
270,  379,  3«'6-7,  401-2,  405,  420-4;  South 
Carolina  and  Georgia,  234.  236-7;  Vir- 
ginia and  West  Virginia.  96.  125-6. 

Bourgeois.  Leon,  views  of.  respecting  sub- 
mission of  political  questions  to  arbitra- 
tion. 270-1,  271   note. 

Bowdoin,  James.  Massachusetts  delegate  to 
First  Continental  Congress.  23. 

Boyd  V.   United  States.  444. 

Bradford.  William,  agent,  case  of  Penn- 
sylvania V.  Connecticut,  232. 

Bradley.  Mr  Justice,  on  concurrent  powers 
of  I'cderal  and  Stale  courts,  415-16;  on 
questions  made  justiciable  by  Constitu- 
tion, 419;  on  terms  of  common  law,  444. 

Bradstreete,  Simon,  deputy  governor  of 
Massachusetts.  103. 

Bragg  V.  The  Sloop  Dove,  222-3. 

Brearly.  David,  views  of,  respecting  equal 
suffrage  of  States,  174;  urged  attendance 
of  -New  Hampshire  at  Federal  Conven- 
tion, 175,  176;  member  court.  Pennsyl- 
vania t'.  Connecticut.  232.  233 ;  declared 
New  Jersey  legislative  act  inconsistent  with 
common  law.  349.  363 

Brewer.  Mr,  Justice,  on  division  of  sov- 
ereign powers.  335 ;  on  moot  cases.  434. 

BriRgs  V.  The  Light  Boats.  454.  461. 

Bright.  General,  and  Olmstead's  Case,  222 
note. 

Briscoe  v.  Bank  of  Kentucky,  457. 

British   South   African   Company,  65. 

Brown  v.  United  Sutes,  383. 


Buckle,  H.  T.,  on  Declaration  of  Inde- 
pendence, 31. 

Bunker    Hill,   battle   of.   23.   28,    129. 

Burgesses,  House  of,  in  Virginia.  23,  74.  83. 
83  note;  in  Maryland,  83  note;  colonial 
assemblies  sometimes  called,  132. 

Burke.  Edmund,  on  general  study  of  law 
in   colonics.   4.59. 

Butler,  Pierce,  motion  respectinr  procedure 
in  Federal  Convention,  155;  on  three-fold 
division  of  powers,  165;  views  of,  re- 
specting inclusion  of  slaves  in  rule  of 
representation.  187;  on  distinct  commer- 
cial   interests   of    States,   189. 

Buvot  V.  Barbut,  448. 

By-laws,  of  corporations,  67-8;  in  excess  of 
grant  of  power,  347.  349. 

Cairns.  Lord,  on  foreign  States  suing  in 
English  courts.  463. 

Calder  v.  Bull.  439. 

Callanan  v.  Judd.  4.?3-4. 

Calvin's  Case.  95,  96 

Campbell  v.  Hall,  94.  99.  347-8. 

Canada,  a  self-governing  dominion,  11;  con- 
quest of.  by  Great  liritain.  13.  24. 

Captures,  provision  for.  in  Randolph  plan, 
159.  Si'c  also  Court  of  .Appeals  in  Cases 
of  Capture. 

Carteret.  Sir  George,  grant  of  New  Jer- 
sey to,   116. 

Cawston  and  Keane,  on  early  chartered  com- 
panies, 65    el  sfq. 

Chalmers.  George,  on  union  of  colonies,  9 
note;  on  Constitution  of  Virginia.  77. 

Chancery.  Court  of.  ordered  enforcement  of 
agrtement  in  case  of  Penn  v.  I-ord  Balti- 
more, 101,  420;  under  State  constitutions, 
139. 

Charles  I,  voluntary  submission  of  Narra- 
gansett  Indians  to  government  of.  103; 
charter  of  1632  to  Lord  Baltimore.  123 

Charles  II,  proclamation  of.  inviting  settlers 
to  Jamaica,  95 :  charter  of  1664  to  Uuke 
of  York,  116,  122,  123. 

Charleston,  seat  of  representative  govern- 
ment in  South  Carolina.  85  note. 

Chartered  Companies.  See  Trading  Com- 
panies. 

Charters.  Massachusetts  and  Connecticut  set- 
tlers originally  without.  5:  foundation  of 
.American  Constitution,  64 :  colonial  char- 
ters and  charters  of  English  trading  com- 
panies. 64  <•/  seq.:  two  kinds  of.  66;  legis- 
lation in  excess  of  grants  of,  65.  83.  84, 
97.  99,  119-21;  erected  bodies  of  indi- 
viduals into  a  corporation,  65,  6.'*:  of  1600, 
to  East  India  Company.  64.  69-70  71,  73, 
76;    of    1606.    to    London    and    Plymouth 


582 


INDEX 


Companies,  70-1.  77:  of  1609  to  London 
Company,  71-2.  77;  separation  of  Ijondon 
and  Plymouth  Companies  under.  77;  ot 
1612,  to  London  Company,  72  3.  79 ;  ot 
1620,  to  Plymouth  Company,  77-9;  of 
1628-9  79  82 ;  new  instruments  of  govern- 
ment 'a  reversion  to,  84 ;  Constitution  a 
charter,  84 ;  declared  colonists  British  sub- 
jects 90:  influence  of,  on  State  constitu- 
tions. 130-2;  governments  more  perfect 
under  constitutions  <»i>"  ""^"' ,lf  •,?/ 
Connecticut,  84  note.  103.  119,  21,  131, 
348:  of  Maryland,  121,  121  note,  122,  123 
of  Massachusetts.  65,  79-84,  84  note,  131. 
132  of  New  York,  86  note:  of  North 
Carolina,  86  note;  of  Pennsylvania,  86 
note.  122.  123;  of  Rhode  Island.  85 
note.  103.  105.  131 ;  of  Virginia.  70  el  seq.. 

83.  , 

Chase,   Chief    Justice,   on    division    of    sov- 
ereign powers,  334-5.  370;  on  duty  of  presi- 
dent rcRarding  acts  of  Congress.  3!«-f) 
Chelmsford.    Lord    Chancellor,     on    foreign 

States  suing  in  English  courts  463 
Cherokee  Nation  v.  Georgia.  387  9,  4U1 
Chesapeake   Hay,  interest  of  various  States 

in  navigation  of,  55-6.   145 
Chicago   and   Grand   Trunk   Railway   Com- 

nanv  V    W'ellman,  434. 
Chisholm  z..  Georgia,  ii3.  ^29,  430.  431.  442. 

465 
Circuit  Courts  of  the  United  States,  organ- 
ized in  pursuance  of  the  judiciary  act  ot 
Sept.  25.  1789,  350;  powers  of,  strictly 
judicial,  350  et  s<q. 
Circuit  Court  for  District  of  New  Vo  k 
opinion  of,  respecting  extent  of  judicial 
powers,  350.  i-.,„ 

Circuit  Court   for  District  of   North  Caro- 
lina, opinion  of,  respectmg  extent  of  ju- 
dicial  powers,   351-2.  .  . 
Circuit  Court  for  District  of  Pennsylvania 
case  of  The  Active  before,  222.  222  note, 
opinion   of,   respecting   extent   of   judicial 
powers.  350-1 ;  opinion  of.  respecting  un- 
constitutionality  of    an    act    of    Congress, 
365 ;  declared  an  act  of  Pennsylvania  con- 
trary to  its  constitution,  365-6. 
Citizen,  suit  of.  against  a  State,  102,  465. 
Clafflin  V.  Houseman,  415  16 
Cahlis,  Court  of.  appeals  from,  to  Supreme 
Court   356.  .W-1.  431-2;  governed  by  com- 
mon law,  444;  United  States  may  be  sued 
in,  465;   jurisdiction   of,  465. 
Clark  V.   Barnard.  458-9. 
riarW's   Case,  344. 
CUnton,    George,    opposed    to    Constitution, 

Ointon,     Governor,    letter    of     Board    of 


Trade  to.  respecting  Massachusetts-Rhode 
Island  boundary.   119  note. 
Coercion  of  States.  Hamilton  on.  55;  Madi- 
son on.  165;  and  laws  operating  directly 
on  individuals.  202.  279  <•(  seq.;  provision 
for,   Randolph   plan.   158.   203;   provision 
for    Patterson  plan,  178.  203;  considera- 
tion of,  in  Federal  Convention,  203  et  seq^; 
coercion  of  law  v.  coercion  of  force,  yv 
et  seq.;   Chief  Justice    laney  on   distinc- 
tion between  judgment  against  an  individ- 
ual and  against  a  State    453^ 
Cohens  V.  Virginia,  409  12,  416,  428 
Coke     Sir    Edward,    first    Virginia   «narter 
drafted  by,  70;  on  judicial  power  of  Iting, 

345-6 
Colden.  Cadwallader,  member  Massachusetts- 
New  Hampshire  boundary  commission,  liy 

Colepepper,  Lord,  and  two  Houses  of   As- 
sembly in  Virginia.  76.  84  note. 
Collector  v.  Day.  335.  368.  369 
Colonial   Uws.   right   to  make,  claimed  by 
colonists.  97 ;  in  excess  of  charter.  97  et 
seq.,  119  el  seq  ,    a    ., 

Colonies,    early    plans    for    "■"»", ?«-,^   '' 
sea  ■   English  common  law  in.  15.  ii>.  w. 
91   9'  97-8;  colonial  views  of  relations  ot. 
wi'th'creat  Britain.  15.  22 ;  efforts  of.  for 
reconciliation   with   Great    Britain    16.   18, 
23    27    28    29;  independence  declared  by, 
22   et'scq.;    claimed   right   of   local   self- 
government,   22;    charters    of,    22,   64    et 
seq  ■   a  report   on  the   rights   and   griev- 
ances of,  24-6.  trade  and  intercourse  with 
Great  Britain  prohibited  by.  26.  J»,    lax- 
ation  of  Colonies  Act.  28;  a  body  politic, 
34-   union  of,  under   Articles  of   Confed- 
eration, 40  el  seq  :  divided  into  two  sec- 
tions by  charter  of  1606,  70-1;  distinction 
between  northern  and  southern.  71.  ''.  ».J> 
courts  and  assemblies  in.  72  el  ^<''7--  %»: 
tinguished  for  system  of  K?^""'",*"';/„%1; 
representative  assemblies  m.  f2_3;  contl^ 
of  interests  of.  with  those  of  Great  Brit- 
ain   99;  boundary  disputes  between.   IW, 
101    109.  118  el  seq.:  dependent  on  Lrown, 
lOl"-   independent  of   one  another   before 
Revolution,   125;   three  branches  of   gov- 
ernment in.  132.   137-9;  independence  of, 
recognin-d  by  Great  Britain,  148. 
Commerce,  state  of.  under  Confederation  49 
U  5    145    166;  demands  of,  considered  by 
Annapoli's  Convention.  145  6  166:  with  for- 
eign nations,  to  be  regulated  by  Congress. 
166    177    190;  southern   States  and  regu- 
lation of.  188-9;  two-thirds  vote  of  legis- 
lature to  regulate,  188;  distinct  commer- 
cial interests  of   States.  188. 


INDEX 


583 


Com  lissioners  of  New  England  Confedera- 
tion,    appointment     of,    7;     powers    and 
duties  of,  7,  8;  election  of  president  of, 
8;  authorized  to  sign  agreement  on  May 
19/29,   1643,   9;   appeal   of    Rhode    Island 
from  decision  of,  102. 
Committee   on    Appeals,    Congressional,   es- 
tablished  by   Congress   under   Confedera- 
tion, 218;  defects  of,  pointed  out  by  mer- 
chants and  citizens  of   Philadelphia,  219; 
appeal  to,  case  of   The  Acliif,  220,  221: 
superseded  by  Supreme  Court,  222;  cases 
before,  transferred  to  Court  of  Appeals  in 
Cases   of    Capture,   224;    analysis    of    the 
work  of,  224. 
Committee  of  Detail,  projects  for  discussion 
in    Federal   Convention   referred   to,   160: 
Patterson,   Randolph   and   Pinckney  plans 
referred    to,    164,    251 ;    organization    and 
constitution  of,  260;  report  of,  260;  mem- 
bers of,  260;   draft   of   Constitution   pre- 
sented by,  260  ft  seq.:  Rutle.Ige.  chairman 
of,    261;    provisions    of    draft    respecting 
judiciary,  261-3;  268  rt  sfq.;  provision  of, 
for  government   f''''  "iterim,  321 ;   provi- 
sion of.  respecting  jurisdiction  of  Supreme 
Court,  374;  text  of  Randolph  plan  as  pre- 
sented to,  529-32;  text  of  report  oi.  5,^2-40. 
Committee  on   Rules  and  Orders,  establish- 
ment  and    functions    of,    153;    rules    and 
orders,   154-5,   156. 
Committee  of  the  States,  report  of.  on  com- 
promise in  Slate  equality  dispute,  180. 
Committee    on    Style,    modifications    of,    to 
article    restiecting   judicial   power    of    the 
United   St.ntes,   264.   273;   and   expression 
"  supreme  law  of  the  land."  277,  -W;  mem- 
bers of.  277,  277  note;  text  of  Constitu- 
tion sent  to.  541-51 ;  text  of  Constitution 
reported  by.  552  69. 
Committee  on  Unfinished  Portions,  question 
of  appointment  of  ambassadors  and  judges 
referred  to.  274. 
Committee  of  the  Whole,  Pinckney  plan  re- 
ferred to,  163;  Randolph  plan  referred  to, 
163.  250.  252,  254.  255.  256.  257 ;  report  of, 
on   Randolph  plan.   176.   177,   524-5;    Pat- 
terson plan  referred  to,  257;  general  prin- 
ciples of  Constitution  considered  in.  259  60. 
Committee    for   Hearing   Appeals    from   the 
Plantations,  composition  and  functions  of, 
100;  appeal  to.  from  colonial  courts.  100; 
and  petition  of  Holden  and  Green.  104  et 
seq.;  and  case  of  Lechmere  v.  Winthrop, 
120,  348 ;  recommendation,  case  of  Penn  r. 
Baltimore.    124. 
Common  Law.  relation  of  to  colonies,  IS,  25, 
90.  91.  92,  97-8;  terms  of,  in  Constitution, 
439;  a  general  study  in  colonies,  439;  lim- 


ited to  ciivl  cases,  441-2;  applicable  in  cases 
covered  by  special  legislative  act,  442;  in- 
terpretation of  terms  of,  442  ei  leq.;  re- 
lation of.  to  admir.  '  .  and  maritime  juris- 
diction, 447-9;  relation  of.  to  law  of 
nations,  447-9.  Sec  also  English  Common 
Law. 
Common   Pleas,  Courts  of,   English,  345-6; 

in  Philadelphia.  455-6. 
Commomvealth  ^■.  Caton.  363 
Commonwealth  v.  Chapman.  445-6. 
Compact,   the    Mayflower    Compact,   3;    be 
tween    Virginia    and    Maryland.    49;    be- 
tween Pennsylvania  and  New  Jersey,  49; 
social   and    political,    134;    a    fundamental 
law,  135. 
Conciliatory  Reso'ution,  1775.  communicated 
to  colon;       by  Lord   North,  27;   rejected 
by  Congress,  28. 
Concord,  battle  of,  26.  28,  129. 
Confederates,   New   England,   expenses   and 
spoils   of   war  divided  among.  7;   admis- 
sion of   new  confederates   or  plantations, 
7;    business    referred    to.    by    commission- 
ers.   8;    provision    respecting    violation    of 
Articles  by  the,  8.    .SVi'  alsi  New  England 
Confederation  and  Commissioners  of  New 
England  'onfederation. 
Confederation,  powers   vested   in,  exercised 
by  Congress,  A2  r(  sea  :  powers  renounced 
to.    by    States.    42-3 .       imposed    of    sov- 
ereign,  free  and   ind.        lent   States.  45 ; 
state  of  commerce  undei.  49.  54-5,  !45.  166. 
See  also  Articles  of  Confederation. 
Congress    under    Confederation,    formation 
and   interests   of,   40;    question    of    large 
and   small    States   '  :fore.   41 ;   efforts   of, 
to  increase  land  •aUies,  42-  powers  vested 
in,   42   ct   seq  ;    a.ipellate   jurisdiction   of, 
44,  Annapolis  Convention  unauthorized  by, 
56,  57;   resolution  of,  convoking  Federal 
Convention,  57-8;  resolution  of.  respecting 
prize  cases,  216  et  seq.;  resolutions  of.  re- 
specting  relations    of    States.   221 ;   estab- 
lished permanent  Court  of  Appeal  in  Cases 
of  Capture.  223  et  seq.;  tempora'y  judicial 
commissions  appointed  by.  229  et  .<:cq.;  ac- 
tion   of.   respecting   Northwest    Territory, 
292-3.  292  note ;  to  continue  between  adop- 
tion of   Constitution  and  organization   of 
new   government,  321;   letter  transmitting 
Constitution  to.  570. 
Congress  under  Constitution,  powers  vested 
in.  43;  first  ten  amendments  to  Constitu- 
tion proposed  to  by  first,  46,  323 ;  enumera- 
tion  of  general   powers   of,    165   ct   seq.; 
commerce  with  foreign  nations  to  be  regu- 
h  -d  by,   166.  177,   190;  acts  of,  supreme 
law  of  land,  178,  276-9,  303,  375;  power  of, 


584 


INDEX 


#:■ 


over  territories  until  their  admission  to 
union.  295^  powir  of.  to  recognize  State 
governments  303  note,  380-2,  392 ;  to  pro- 
pose anundnients  to  Constitution,  300  1 ; 
defined  extent  of  power  of  Supreme  Court, 
342.  act  of.  respecting  pensions.  350,  365; 
act  of.  authorizing  judges  to  adjust  claims 
under  treaty  with  Spain,  354;  act  of,  re- 
specting jurisdiction  of  Supreme  Court, 
306-8;  act  of.  respecting  drawing  of  lot- 
teries in  District  of  Columbia.  409.  Ste 
also  Legislative  Branch 
Congressional   Committee  on   Appeals.     See 

Committee  on  .Xppeals.  Congressional 
Connecticut,  settlers  of.  4,  5;    Fundamental 
Orders   of.   4.   S.   member   of    New    Eng- 
land Confederation.  7;  represented  at  Al- 
bany Congress.  1 1  .  governed  under  a  char- 
ter, 22;  charter  of.  84  note.  103,  119.  121, 
131,  348:   rcprtsentative  assemblies  cf,  84 
note.  %;   charter   provisions  of.   in    force 
after  Declaration  of  Independence.  84;  leg- 
islative power  of.  %.  97,  101,  119;  boundary 
disputes.    m-<).    114.    118,   231-4.   237.   292 
note;  Act  of  1<)99  respt^.ing  settlement  of 
intestate  estates.  119  ft  seq,  348;  constitu- 
tion of,  131  ;  colonial  governor  of.  elected 
by  people.  138;  courts  of,  elected  by  col- 
onial   authorities,    138;    delegates    of,    to 
Federal  Convention.  147.  152;  in  favor  of 
equal  representation  and  suffrage  of  States 
in  Senate.  179  80.  184;  claim  of.  to  North- 
west Territory,  292  note ;  opposed  to  popu- 
lar ratification  of  Constitution.  i05.  308. 
Conquest,   rights   of,  v.   rights  of   discovery, 
91.  92;   Blackstone's  interpretation  of.  92; 
laws   of,  93   note,  95. 
Constitution    of    the    United    States,    pre- 
scribes equal  representation  of  States,  11; 
a  compromise.   41.   46.    172.   332;    govern- 
ment   under,    acts    directly    on    people    of 
States,   43;    powers    vested    in    union    by, 
-      43    161.  165-8;  ilirce-fold  division  of  gov- 
ernment  a   principle   of.   45;   amendments 
to   46    137.  299  .-/  seq-  i-ii  et  seq.,  572-6; 
ratification   of.   46.    164.   301    et   seq. J\2. 
321-2;  .Articles  of  Confederation  and  State 
constitutions    bases    of.    53.    131 :     ^'■"J^'" 
of  Confederation  replaced  by.  Si.  58.  147. 
161     adoption  of.  58 ;  a  result  of  progres- 
sive history.  64;  colonial  charters  founda- 
tion of,  64;  laws  inconsistent  with.  65,  101. 
200     M  :    judicial    power    conferred    by, 
65     102.    108,    119    note,    121.    125.    126, 
190    211  12,   374-5,  398  el  scq.  427.  429 
430."  438    et   seq..   453.    454 ;    a   charter    of 
union.  84;  legislative  powers  conferred  by. 
137    172  ,-/  seq.  280.  342.  376.  467;  instruc- 
ii„ns    respecting,   to   delegates   to   Federal 


Convtntion,  150-3 ;  Randolph  asis  of, 

158,  other  plans  for,  163-4.  .raflcl  by 
Committee  of  Detail.  164,  260,  532-40.  I  he 
Federalist,  classic  exponent  of,  1<>4,  315; 
international  law  in.  167;  established  a 
government  of  laws  and  not  of  men,  lo8. 
seat  of  government  under.  168;  established 
a  government  of  limited  powers,  168;  su- 
premacy of,  enforced,  case  of  Tfce  -li- 
tive.  111  note ;  "  supreme  law  of  the  land,' 
276  9,  302  et  seq,  375 ,  devised  primarily 
for  the  thirteen  confederated  States,  2'X). 
officers  of  States  and  United  Slates  bound 
by  oath  to  support,  304;  derives  its  validity 
from  ratification  of  the  States,  309;  gov- 
ernment under,  begun.  III:  ratified  by 
State  conventions,  331 ;  Madison's  letter  to 
Hayne  respecting,  335-7;  text  of.  502-11, 
552-69.  transmitted  to  Congress.  570. 
transmitted  to  States  for  ratification.  571 
Constitutions.  British  constitution,  64;  gov- 
ernment more  perfect  under,  than  under 
charters.  139  ,  ,,    j-      •         « 

Constitutions.  State,  three-fold  division  of 
government  in,  45,  133  et  seq..  influence 
of  colonial  charters  on,  130-2;  bills  of 
rights  prefixed  to.  137 ;  governments  under, 
139-40;  courts  under.  Uy;  the  Constitu 
tion  of  the  United  States  given  precedence 
over.  276,  .W2  et  seq.  375;  of  Arkansas, 
457  8;  of  Connecticut,  131;  of  Delaware, 
126;  of  .Maryland,  196.  307;  of  Massa- 
chusetts. 131  ./  scq..  138.  156.  201.  2/4  et 
seq.:  of  New  Jersey.  349;  of  Ne;v  V^/^'' 
136  137.  201;  of  Pennsylvania.  136,  J6S; 
of  Rhode  Island.  131,  380;  of  South  Caro- 
lina,  198;   of   Vermont,  290;  of   Virgmia, 

76-7,  133.  ^      r~  ^      ,r- 

Constitutional  Convention.  See  Federal  Con- 
vention 
Continental  Congress,  First,  1774,  a  fore- 
runner of,  in  I'enn's  plan  of  union,  10; 
foresaw  necessity  for  some  form  of  gov- 
ernment, 129-30:  Iranklin's  second  plan 
presented  to.  15 ;  met  at  Philadelphia.  23 ; 
delegates  to,  IX  24;  Randolph  president 
of  24.  Declaration  and  Resolves  of.  24  0. 
views  of  members  respecting  Navigation 
Acts  .d  Acts  of  Trade,  26;  advocated 
association  to  cut  off  trade  with  Great 
Britain,  26.  ,    •    j         j     „ 

Continental  Congress,  Second,  independence 
declared  by.  II.  29  et  seq.:  recommends 
adoption  of  some  form  of  Kovernment. 
28-9  129  .•(  seq.:  met  at  Philadelphia,  <;6, 
129;'  president  of,  26;  election  of  com- 
mander-in-chief by.  26-7;  adopted  Declara- 
tion of  the  Causes  and  Necessity  of  Tak- 
ing up  Arms.  27;  efforts  of,  at   concilia- 


INDEX 


585 


tion  with  Great  Britain,  27  et  seq.;  doc- 
trines of,  3S ;  action  of,  respecting  matters 
of   prize,   216  17. 

Consuls,  how  nominated  and  appointed,  199, 
261-2;  power  of  judiciary  to  pass  upon 
cases  affecting,  212,  262,  263,  277,  398, 
403,  417. 

Cope,  Henry,  member,  Massachusetts-New 
Hampshire  boundary  commission,  119  note. 

Copyrights,  power  over,  given  to  Congress, 
166. 

Corporations,  charters  to,  65,  68;  character- 
istics of.  66-7;  defined,  67;  by-laws  of, 
67,  68. 

Council  for  the  Government  of  Foreign 
Plantations,  99. 

Counterfeiting,  power  of  Congress  to  pun- 
ish.  166. 

Court  of  Appeals  in  Cases  of  Capture,  first 
permanent  tribunal  of  States,  210  i-*  seq.; 
advocated  by  Washington,  216-18;  estab- 
lished by  Congress  under  Confederation, 
223;  judges  of.  22i:  cases  before  Con- 
gressional Committee  on  .Appeals  trans- 
ferred to.  224 .  analysis  of  the  work  of, 
224;  cases  submitted  to,  224  note:  Jameson 
on  influence  of.  225 ;  an  origin  of  Su- 
preme Court.  225.  244 ;  purpose  of.  to  ob- 
tain uniformity  of  decision  in  matters  of 
prize,  244;  jurisdiction  of,  273,  447;  ju- 
dicial power  of  United  States  extended  to 
cases   decided   by.   447. 

Courts,  under  Confederation,  44-5.  214  et 
seq.,  229  el  seq.,  247;  power  of  English 
courts  respecting  legislation  in  excess  of 
charters,  65 ;  of  East  India  Company,  69- 
70:  colonial.  72  el  seq,  100.  138.  213.  218: 
in  States,  138.  139.  213;  relation  of  Fed 
eral  and  State  courts,  304,  413-16;  a  court 
defined,  400:  right  of  Congress  to  bring 
cases  to  cognizance  of,  432.  See  also  Su- 
preme Court,  Judicial  Power. 

Coyle  V.  Smith,  294. 

Credit.     See   Bills  of  Credit. 

Crown  of  England.  Pilgrims  without  char- 
ter *rom  3.  5 ;  disapproved  .Mbany  plan 
of  union,  14;  petitioned  by  colonists  for 
redress  of  grievances,  'ii,  27 :  Jamaica,  part 
of  possessions  and  revenues  of.  92.  93 : 
legislative  powers  of.  94.  95 ;  prerogatives 
of.  99;  colonies  dependent  on.  101;  in- 
terest of,  in  colonial  disputes,  101  <•/  seq.; 
certain  colonial  governors  and  courts  ap- 
pointed by,  138:  territory  ceded  to,  by 
Treaty  of   Paris.  292. 

Cuba,  title  of,  to  Isle  of  Pines.  379  note, 

Cumberland,  George  Earl  of.  East  India 
Company  charter  of  1600.  granted  to.  69. 

Curtis,  Mr.  Justice,  on  right  of  Congress  to 


bring  cases  within  cognizance  of  courts, 
431-2. 

Currency,  to  be  issued  by  Congress,  43. 

Cushing,  Thomas,  delegate.  First  Continental 
Congress,  23. 

Cushing.  Justice,  member.  New  V'ork  Cir- 
cuit Court.  350:  commissioner,  case  of 
United  States  v.  Todd,  353. 

Davie,  William  K.,  member,  compromise  com- 
mittee, Senate  suffrage  controversy,  185. 

Davis  and  Cargo,  The  .  chooner,  461. 

Davis,  J.  C.  Hancroft,  cited,  regarding  work 
of  committees  and  Court  of  Appeals,  224, 
224  note. 

Day,  Mr.  Justice,  on  Root's  instructions  for 
government  of  the  Philippines,  330:  on 
extra-judicial  opinions  of  Supreme  Court 
judges,  433;  on  interpretation  of  terms  of 
common  law,  443. 

Dayton.  Jonathan,  presence  at  Fedeial  Con- 
vention urged,  176;  considered  provision 
for  settling  disputes  between  States  un- 
necessary,   269. 

Dean,  Silas,  negotiated  treatv  with  France, 
1778,  35. 

Declaration  and  Resolves  of  First  Conti- 
nental Congress,  1774.  adopted.  24:  sum- 
mary of.  24-6 :  extract  from,  on  English 
law   in  colonies.  98. 

Declaration  of  the  Causes  and  Necessity  of 
Taking  up  -Arms.  1775.  adopted  by  Sec- 
ond  Continental   Congress,  27. 

Declaration  of  Independence,  some  form  of 
general  government  necessitated  by.  15; 
justified,  22:  conditions  which  occasioned, 
22;  Richard  Lee's  motion  respecting.  29  et 
seq.,  40.  135.  217:  drafting  committee  of, 
29;  draft  of.  presented  by  committee.  30; 
signed  and  published,  30:  summary  nt.  and 
comments  on,  30  et  seq  :  drafted  by 
Thomas  Jefferson,  30,  33,  135 :  ideas  and 
language  of,  derived  from  English  phil- 
osophers, 25-6;  French  influence  on,  35-6; 
vested  sovereignty  in  the  people.  1.'3.  30S\ 
government  derives  powers  from  consent 
of  governed.  140;  declares  colonies  free 
and  independent  States,  455 ;  text  of, 
492-4. 

Declaration  of  Rights     See  Bill  of  Rights. 

De  Lancey,  James,  member,  Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 

Delaware,  excluded  from  Albany  plan  of 
union.  11  :  interest  of,  in  navigation  of 
Chesapeake  Bay,  56;  represented  at  An- 
napolis Convention,  56,  146;  appointed 
delegates  to  Federal  Convention,  56,  146; 
representative  assemblies  in,  85  note ;  char- 


586 


INDEX 


ter  of,  86  note;  diiputes  between  Penn 
and  Lord  Baltimore  respecting  territory 
of,  121-S;  constitution  of,  126;  court  of 
appeals  in.  126,  139;  instructions  of,  to 
delegates  to  Federal  Convention,  150-2, 153 ; 
insisted  on  equal  vote  of  States  in  both 
branches  of  legislature,  151-2,  153.  173-4, 
184,  185 ;  vote  of,  respecting  popular  rati- 
fication of  Constitution,  305,  308;  ratifi- 
cation of  Constitution  by,  309,  310.  571 
note;  ratification  of  first  ten  amendments 
to  Constitution  by,  572  note. 
De  Lovio  r.  lioit,  447  note. 
Dent,  Mr.  Justice,  "supreme  court"  defined 

by,'  400 
Detail,   Committee   of.     See  Committee  of 

Detail 
Dickerson,  Oliver  Morton,  on  settlement  of 
colonial  boundary  I'sputes,  118  note,  119 
rote 
Dickinson.  John  draft  of  Articles  of  Con- 
federation presented  by.  18.  40,  41-2,  237; 
drafted  conciliatory  petition  to  King,  27; 
chairman  of  committee  to  report  form 
of  I  on  federation.  40;  delegate  of  Delaware 
to,  and  chairman  of  .^nnapolis  Conven- 
tion. 56;  Delaware  delegate,  Federal 
Convention.  151.  237;  compromise  motion 
of  respecting  election  of  senators  by  State 
legislatures.  173,  179,  180;  in  favor  of 
equal  suffrage  of  States.  177;  president 
of  Pennsvlvania.  233;  member  of  court. 
South  Carolina  Georgia  boundary  dispute, 
2.17;  refused  to  sign  Declaration  of  In- 
dependence, 237;  opposed  to  limitation  of 
judicial  power  of  United  States,  252; 
views  of,  respecting  institiitio.i  of  naticnal 
judiciary  by  legislature,  253:  proposal,  te- 
specting  tenure  of  judges.  263;  motio  i  of, 
respecting  appellate  jurisdiction  of  Su- 
preme Coui ".  273. 
Dickinson,  pi.ilemon.  member  of  court. 
South  Carolina-Georgia  boundary  dispute, 

237. 
Disarmament,    States    voluntarily    submitted 

to.  210. 

Discovery,  right  of,  v.  right  of  conquest,  Vl ; 
trie  basis  of  possession,  92;  laws  of  con- 
quest, 93  note. 

Disputes.    S<f  Boundary  disputes. 

District  of  Columbia,  seat  of  grvernment 
under  Constitution,  168;  act  of  Congress, 
permitting  the  drawing  of  lotteries  in.  409. 

Doderidge.  Sir  James,  dra'ted  first  Virginia 
charter,  70  .         ,  ,   j 

Drafting  Committee  of  Declaration  of  Inde- 
pendence. 29,  30. 

Drayton's  .Articles  of  Confederation,  treaty- 
making  provision  in,  198  note. 


Duane,  James,  District  Judge,  New  York 
Circuit  Court,  350 ;  member  of  court.  South 
Caroline-Georgia  boundary  dispute,  237. 

Duties,  right  of  States  to  lay,  renounced,  43; 
power  of  Congress  to  collect,  166;  pro- 
vision respecting,  Patterson  plan,  177. 

Dyer.  Eliphalet,  agent,  case  of  Pennsylvania 
V.  Connecticut.  232. 

East  India  Company,  charters  of,  64.  69-70, 
71.    7i,    76;    a    joint-stock    company,    68; 
origin  of  Empire  of  India,  70 ;  organization 
of,  70 
East  Jersey.    See  New  Jersey. 
E.astland  Company,  a  regulated  company,  68. 
Edward  VI,  statute  of,  against  buying  offices 
concerning  the  administration  of  justice,  92. 
Elizabeth,  Queen,  charter  to  George,  Earl  of 
Cumberland,   69,   70,  71;   charter   to    East 
Indian  Company,  73 
Elliot,  Andrew,  member  New  York-New  Jer- 

sey  boundary  commission.  1767,  116 
Elliot,  Jonathan,  on  debates  in  the  Federal 

Convention.  53. 
Ellsworth.  Oliver,  Connecticut  delegate.  Fed- 
eral Convention.  152;  motion  of.  respecting 
term  "  national "  in  relation  to  the  legis- 
lature. 161;  in  favor  of  equal  suffrage  of 
States,    176;   on   necessity   of  maintaining 
the    State    governments.    180,    184;    urged 
equality  of  suffrage  in  benate,  179-80,  181-2, 
184;  member  compromise  committee.  Sen- 
ate   suffrage   controversy,    185 ;    views   of, 
respecting  principle  of  coercion.  206.  281-2; 
member.  Committee  of  Detail,  260;  in  fa- 
vor of  ratification  of  Constitution  by  State 
legislatures.  305.  307.  308;  on  dctermmation 
of  constitutionality  by  Supreme  Court.  364; 
chairman,  drafting  comm;ttee  of  Judiciary 
Act,  1789,  40.3.  414;  proposed  investing  ju- 
diciary with  pol;tical  functions.  418;  opin- 
ion   of,    respecting    inclusion    of    law    of 
crimes  in  common  law.  441. 
Embassies,  to  be  sent  and  received  by  Con- 
gress. 43.    See  also  Ambassadors. 
Endicott.  John,  director  of  "London's  Plan- 
tation in  Massachusetts  Bay  in  New  Eng- 
land." 81. 
England.    See  Great  Britain  and  Crown  of 

England. 
English  Common  Law,  indelible  allegiance  a 
doctrine  of,  90;  relation  of,  to  colonies, 
90  i-t  seq. ;  applica,ion  of.  to  Jamaica,  92-3 ; 
early  colonists  not  familiar  with,  98;  doc- 
trine of  primogeniture  under,  119-20;  Con- 
necticut Act  of  1699  declared  contrary  to. 
121 ;  influence  of,  on  nature  of  judicial 
power  in  Constitution,  343. 
English  subjects,  colonists  declared  by  char- 


INDEX 


587 


ters  to  be,  90;  discovery  by,  92;  bound 
by  acts  of  Parliament,  93. 

Erstern,  The.  224  note. 

Executive,  of  States,  136,  138:  differences  of 
opinion  respecting,  in  Federal  Convention, 
195;  a  single  executive,  195;  term  of  office, 
19S-6;  system  of  election  of,  l%-7;  his 
oath  of  office,  197;  his  powers.  197,  324; 
relations  of,  with  legislative  department, 
197,  200  et  set!.,  power  of,  respecting 
treaties.  '"7-9;  vested  with  exercise  of 
political  power,  376  et  seq.  See  also  Presi- 
dent. Vice-President. 

Executive  Power,  under  Articles  of  Confed- 
eration. 43  et  seq.,  160,  341 ;  of  New  Eng- 
land Company.  72;  of  Privy  Council,  99) 
provisions  respecting,  in  charters,  132  3;  in 
State  constitutions,  136.  138;  in  Constitu- 
tion, 138,  342;  in  Randolph  plan,  158-9, 
161,  194-5,  199,  200.  250;  Sir  Henry  Mame 
on.  280;  in  Patterson  plan.  178 

Experiment  v.  The  Chester,  2Z4  note. 

Federal  Convention.  Rhode  Island  not  rep- 
resented in,  7,  147;  question  of  large  and 
small  States  in,  41.  148,  151-3,  172  et  seq., 
250,  .'35  et  seq.,  300;  revision  of  .Articles 
of  Can  federation  original  purpose  of.  47, 
53,  57.  58.  130.  247 ;  leadership  of  Madison 
in.  48;  replaced  .Articles  of  Confederation 
by  Constitution,  53,  147;  recommended  by 
Annapolis  Convention.  56-7.  146.  150, 
166 ;  recommended  by  Congress.  57-8.  146- 
7;  drafted  Constitution,  84.  130;  New  York 
State  constitution  a  source  of  proposals 
in,  136-7;  differences  of  opinion  in.  re- 
specting question  of  executive  power,  138, 
195 ;  method  of  choosing  judges  consid- 
ered by,  138;  met  at  Philadelphia,  147-8; 
organization  of,  148  9;  an  international  con- 
ference. 129,  466 ;  instructions  to  delegates, 
150-3.  173;  a  conference  of  twelve  States 
153;  committee  on  rules  and  orders,  153-5: 
international  aspects  of.  155-6 ;  opening  of 
the  Convention.  156:  Randolph's  fifteen  res- 
olutions. 158-60;  change  of  purpose  of, 
160;  other  "plans."  163-4;  question  of 
"  national  "  v.  "  federal  "  government  be- 
fore, 164-5 ;  summary  of  powers  granted 
to  union  by,  165-8;  spirit  of  compromise 
in,  172;  duties  of  committees  of.  254;  con- 
templated union  of  more  than  thirteen 
States.  290 ;  insisted  on  separation  of  politi- 
cal and  judicial  powers.  418;  text  of  let- 
ter of,  transmitting  Constitution  to  Con- 
gress, 570.    See  also  Committees. 

Federal  Court  of  Appeals.  See  Court  of 
Appeals  in  Cases  of  Capture. 

Federalist.  The,  classic  exponent  of  the  Con- 


ititution,  164,  274-5,  362;  Hamilton,  Madi- 
son and  Jay,  authors  of,  164,  274;  on  in- 
dependence of  Vermont,  241 ;  on  lack  of 
judicial  power  under  Confederation,  247- 
8;  on  sovereign  immunity  from  suit,  248-9; 
on  power  of  Supreme  Court  to  declare 
laws  unconstitutional,  362,  363-4;  on  con- 
current jurisdiction  of  State  aiid  Federal 
Courts,   414-15. 

Field.  .Mr.  Justice,  on  tern.j  "  cases "  and 
"  controversies,"  429-30 ;  on  immunity  from 
suit  and  extent  to  which  it  may  be  re- 
nounced,  459-60. 

Fleming.  William,  member  court,  Massachu- 
setts-New  York  boundary   dispute.  2.'5. 

Foreigners,  cases  affecting,  in  provisions  of 
Randolph   plan,   159. 

Foster  v.  Neilson,  376-8,  379,  379  note.  382. 

Frame  of  Government.  1682  (Pennsylvania), 
representative  assembly  under.  85  note. 

Framework  Knitters  v.  Green,  Master  and 
Company  of,  67. 

France,  alliance  of  American  colonies  v\ith 
Indians  in  case  of  war  with.  11;  treaty 
of,  with  Great  Britain  at  close  of  Seven 
Years'  War,  14.  24,  94,  2')Z.  347;  alliances 
of,  with  United  States,  .54-5.  -',5 :  pre- 
tensions of,  to  lands  around  Green  .Moun- 
tains, 238;  in  comm.iiiil  of  Lake  Cham- 
plain.  238;  desired  union  of  .American 
Stales.  293 ;  territory  in  Louisiana  ceded 
to,  by  Spain,  376-7;  ceiled  territory 
to  United  States  by  treaty  of  1803. 
377. 

Franklin.  Benjamin,  Pennsylvania  delegate, 
.Mliany  Congress.  11;  indignities  siifTcrcd 
by,  at  hands  of  British.  18;  views  of.  re- 
specting cimciliation  with  Grctt  Hrit.iin. 
18;  member.  <lraf!ing  committee.  Dcchra- 
tion  of  Independence.  30.  30  note.  M :  first 
minister  to  France.  35;  negotiated  treaty 
with  France.  1778.  35:  in  favor  of  single 
legislative  house.  136.  172;  prcsiilcnt  of 
Pennsylvania.  148;  considered  in  connec- 
tion with  presidency  of  Federal  Conven- 
tion, 149;  personality  in  Federal  Conven- 
tion, 149;  remarks  on  dispute  respecting 
equal  suflFrage  in  Senate.  182;  member 
compromise  committee,  Senate  suffrage 
controversy.  185:  on  conllicting  interests  in 
Federal  Convention,  333-4.  467:  on  use  of 
Vattel's  work  in  Continental  Congress, 
439-40. 

Franklin  Plan,  1754.  why  rejected.  6.  14; 
presented  to.  and  adopted  by  .Albany  Con- 
gress. 11  ;   summary  of.   11-14. 

Franklin's  Plan,  1775.  laid  before  Contin- 
ental Congress.  15-16:  summary  of,  16- 
17;  not  adopted,  17;  Dickinson's  draft  of 


588 


INDEX 


f^fr       » 


ft: 


Article!  of  Confederation  •imiUr  to,  18, 
4  J -2. 

Franklin,  William  Temple,  propoted  as  lec- 
retary,  Federal  Convention,  149;  not 
elected.   149-50. 

French  and  Indian  War.  Washington  in,  14; 
expense!  of  New  Vork  in,  115;  States 
parties  in,  213. 

French  Revolution,  and  influence  of  Rous- 
seau, 31. 

Frothingham,  Richard,  on  Franklins  first 
plan  of  union,  6;  on  principle  underlying 
New  England  Confederation,  9  note;  on 
representative  assemblies,  83-6  notes. 

Fuller,  Mr.  Chief  Justice,  on  case  involving 
action  of  political  departments  of  govern- 
ment. 379  note;  opinion  of,  in  case  in- 
volving distinction  between  suits  of  a  civil 
nature  and  suits  coming  under  law  of 
nations,  440  note. 

Fundamental  Orders  of  Connecticut,  first 
written  constitution,  4;  preamble  to,  5; 
provisions  of,  5. 

Garcia  v.  Lee,  379,  379  note. 

General  Assemblies,  of  East  India  Company, 
70  of  Virginia,  74.  75.  76;  of  Massachu- 
setts, 80,  82-3;  of  Grenada,  94.  %,  247; 
of  Jamaica,  95;  of  Connecticut,  96;  of 
New  York,  137. 

George  111,  grievances  suffered  by  colonies 
at  hands  of,  30;  proclamation  of,  respect- 
ing General  Assembly  of  Grenada,  94,  96, 
247.  ,      . 

Georgia,  excluded  from  Albany  plan  of  union, 
11:  not  represented  at  First  Continental 
Congress,  23.  24;  represented  at  Second 
Continental  Congress,  26;  wars  and  treat- 
ies of,  with  Indians.  49;  appomfed  dele- 
gates to  Federal  Convention,  57,  146;  rep- 
resentative assemblies  in.  86  note ;  instruc- 
tions to  delegates.  Federal  Convention,  152; 
vote  divided  on  question  of  equal  suf- 
frage of  States  in  Senate,  176.  176  note, 
184;  opposed  to  equality  of  States  in  Sen- 
ate, 185:  in  favor  of  popular  ratification 
of  Constitution.  305.  308;  ratification  of 
Constitution    by,   310.   571    note. 

Georgia  v.  Stanton,  386-9 

Germans,  customs  of,  depicted  by  Tacitus,  76. 
German   States,  customs  union   in,  55. 

Gerry,  Elbridge,  on  representation  of  States 
in  two  branches  of  legislature,  130;  fa- 
vored compromise  Senate  suffrage  contro- 
versy, 184-5 ;  chairman  compromise  commit- 
tee. Senate  suffrage  controversy,  185. 
urged  establishment  of  prize  jurisdiction 
in  Massachusetts.  216;  proposed  a  bill  of 
rights  to  Constitution,  328;   in   favor  of 


leparation  of  judicial  and  other  powers, 
314,  418,  419. 
Gibbons  v.  Ogden,  59-60 
Gladstone,    Wm.    E.,   statement   of,   regard- 
ing   British    and    American    constitutions, 
64. 
Gloucester,  The.  224  note 
Goldsboroiigh,    Robert,    member    of    court, 
South  Carolina-Georgia  boundary  dispute, 
237. 
Gordon  v.  United  States,  356-60,  453. 
Corham,    Nathaniel,   on  commercial  motive 
to  union  of  Eastern   States,   188,   189-90; 
called  attention  of  Federal  Convention  to 
method  of  appointment  of   public  official* 
in  Massachusetts,  199;  in  favor  of  appoint- 
ment of  Supreme  Court  judges  by  execu- 
tive with  consent  of  the  Senate,  258;  mem- 
ber. Committee  of  Detail,  260;  considered 
special  provision  for  settling  suits  between 
Stales  unnecessary,  269;  in  favor  of  sep- 
aration of  judicial  and  other  powers,  418, 
419. 
Government,  under  Constitution,  a  govern- 
ment of  laws,  168:  seat  of.  168;  a  govern- 
ment of  limited  powers.  168;  fier  interim, 
321 ;  new  government  begun.  322 ;  relation 
of  Court  to,  369. 
Governor,  signature  of,  to  statutes  and  bill* 
required  by  State  constitutions,  136;  mem- 
ber of  council  for  revision  of  bills  to  be 
passed  by   legislature,   136-7;   powers   en- 
trusted to  by  States,  197. 
Governor  and   Company   of   the   Massacku- 
tetls   Bay   in   New   England,   creation    of 
by  charter  of   1628-9,  79,  80. 
Governor   and   Comfany   of   Merchants   of 
London  Trading  to  the  East  Indies.     Set 
East  India  Company. 
Gray,   Mr.   Justice,   decision,   case   involving 
action  of  political  departments  of  the  gov- 
ernment,  379   note;    on    interpretation    of 
terms  of  Constitution  in  light  of  common 
law,    444;    decision    indicating   gravity    of 
offense    against    law   of   nations,   449;    on 
reason  for  exemption  of  State  from  suit, 
454. 
Great   Britain,  conquest  of  Canada  by,   14, 
23;    efforts   of   colonies   at    reconciliation 
with,  16,  18,  23,  27,  28.  29;  regarded  col- 
onies from  imperial  standpoint,  22-3 ;  proc- 
lamation of  rebellion  issued  by.  28 ;  renun- 
ciation by.  of  right  to  impose  taxes  on  a 
colony,  28;  Treaty  of  Peace  with   United 
States,  49,  60,  276.  277;  Island  of  Granada 
ceded  to.  by  treaty  of  1763  with  France, 
94;  conflict  of  interests  of,  with  those  of 
colonies,  99 ;  western  territory  ceded  to,  by 
France.  292. 


INDEX 


589 


"  Green  Mountain  Boyi,"  defeated  Hesiians 

at  battle  of  Bennington,  239 
Greene,  Nathaniel,  declined  p<  sition  as  mem- 
ber of  court,  Pennsylvania  v   Connecticut, 

HZ. 
Grenada,  iesitlative  authority  vested  in  gen- 

eri.1  assembly  of.  ')4.  % .  ceded  to  Great 

Britain  by   France,  94,  347. 
Grenville's  Act,   1770,  for  trial  of  disputed 

elections,  230. 
Grier,  Mr.  Justice,  on  prize  cases  and  power 

of     president     under     international     law, 

382-3. 
Griffin,  Cyrus,  Judge,  Court   of   .Appeals  in 

I'ases  of  Ca|)lure.  22.?;  member  of  court, 

Pennsylvania  v.  Connecticut,  232,  233. 
Guizot,  F.,  on  assemblies,  76. 

Uabana,  The  Paqurlc.  449. 

Hague  Conference,  Pacific  Settlement  Con- 
vention of.  269.  468. 

Hamilton,  Alexander,  on  coercion  of  States, 
55,  204,  205;  dclcKate  of  New  York  to 
Annapolis  Convention,  56;  proposed  Major 
Jackson  for  secretary  of  the  Federal  Con- 
vention, 149-50;  suggestion  for  a  constitu- 
tion by,  164,  527-8;  secured  ratification  of 
Constitution  in  New  York,  164,  314-15; 
and  The  Federalist.  164.  204.  205,  314-15, 
.162 ;  on  independence  of  '.'ermont,  241 ; 
on  defective  judicial  system  under  Con- 
federation, 247  8;  on  immunity  of  sovereign 
from  suit,  248-9;  member.  Committee  on 
Style.  277  note ;  views  of,  respecting  a 
conditional  ratification  of  the  Constitu- 
tion. 309;  views  of,  on  interpretation  of 
Constitution.  ii2\  on  power  of  judiciary 
to  declare  laws  unconstitutional,  363-4; 
held  judicial  power  to  be  concurrent, 
414-15. 

Hamilton,  Joh'  'lember  Massachusetts-New 
Hampshire  boumlary  commission,  119  note. 

Hancock,  John,  succeeded  Randolph  as  presi- 
dent of  Second  Continental  Congress,  26, 
216.  310;  signed  Declaration  of  Independ- 
ence as  president  of  Congress,  30,  310; 
views  of,  respecting  amendments  to  Con- 
stitution, 310. 

Hans  V.  Louisiana,  419. 

Hanson.  Alexander  Contee.  member  of  court. 
South  Carolina-Georgia  dispute,  237. 

Hardwicke,  Lord.    See  Vorke,  Sir  Philip. 

Harlan,  Mr.  Justice,  on  right  of  United 
States  to  withhold  moneys  received  by  it 
under   a   treaty,   432-3 

Harris.  William,  pretensions  of.  subject  of 
Holden   &   Green   petition.   102-9. 

Harii5!^n,  Benjamin,  on  influence  of  New 
£ng!.inucrs  in  Congress,  41. 


Hayhurn's  Case,  352,  353,  365. 

Hayr.  :iion,  Olho,  member,  Massachusetts- 
New   Hampshire  boundary,  119  note. 

Healhfield  t-.  Chilton.  448. 

Henry,  Patrick,  opposed  to  Constitution.  312; 
declined  appi  intment  to  Federal  Conven- 
tion. 312. 

Henry  IV,  project  of,  respecting  establish- 
ment of   European  diet,  9,  Hi. 

Hessians,  defeated  at  battle  of  Bennington, 
239 

Hobart.  Sir  Henry,  on  by-laws  of  corpora- 
tions, 67;  drafted  second  Virginia  char- 
ter, 71  ;  drafted  third  Virginia  charter, 
72. 

Holden  and  Green,  petition  of,  101-9 

Holland,  Treaty  of,  with  United  States,  Oc- 
tober  8,   1782,  49.   60. 

Holland,  Samuel,  member  of  New  York- 
New  Jersey  boundary  commission,  1767, 
116. 

Holmes,  Mr.  Justice,  on  source  of  immunity 
of  sovereign  power  from  suit,  454-5. 

Holmes  v.  Walton,  349,  363. 

Holt,  Chief  Justice,  on  jurisdiction  of  a  cor- 
poration, 68;  on  rights  of  discovery  and 
conquest,  92. 

Holton,  S.,  agent,  Massachusetts-New  York 
bo.mdary  dispute,  235. 

Hooker  (Richard),  influence  of  doctrines 
of,  on  Declaration  of  Independence.  3.''. 

Hooker,  Thomas,  on  spirit  nf  Pilarims,  3. 

Hosmer,  Titus,  Judge,  Court  of  Appeals  in 
Cases   of   Capture,  223 

House  of  BurRcsscs,  Virginia.  23,  83,  84 
note;  colonial  assemblies  sometimes  called, 
132 

House  of  Representatives,  represents  people 
of  States  according  to  po|)uIation.  172; 
great  debate  on,  question  of  representa- 
tion in.  173  el  seq.:  compromise  respect- 
ing proportional  representation  in.  156-7; 
rule  of  suffrage  for,  187;  and  presidential 
election.  196;  debate  in.  on  Madison 
amendments.  325.  See  also  Legislative  De- 
partment. 

Houston,  William  Churchill,  member  of 
court,  fennsylvania  v.  Connecticut.  235, 
236. 

Hudson  Bay  Company,  a  joint-stock  com- 
pany. 68. 

Hunter,  governor  of  New  York,  110;  com- 
missions issued  by,  respecting  New  York- 
New  Jersey  boundary  dispute,  110,  113. 

Hutchinson.  Thomas,  on  Virginia  House  of 
Burgesses.  23:  on  original  charter  of  Mass- 
achusetts. 65 ;  on  representative  institutions 
in  Massachusetts.  82-3;  plan  of,  for  treaty- 
making  with  Indians,  198  note. 


590 


INDKX 


InSndtc,  .  (undamen...  rig»>«:f  •«'"«-, 
.  ,  .(  f„rred  «bon  Second  Contineniai 
C°ongrc«^"laimcd,  30;  r.guU.ed  by 

Urati.in  of  liuUpcndence. 

Th.,*  from   of  land  called  Indiana.  242. 
cbtse  irom.  Ill  J      J,. 

Indian,,  not  taxed.  42  '77  8    wars 

ir,  of  (  eorRia  with.  4>) .  rit!i"  '>•.         >'^, 
,eUn    «1     Jamaica  ^""'lUcTcd   f rom,  92 , 

166:  territories  rc=...ed  '?•  ^^y     ^.>^.„ 
Ingcrsoll.   Jared,    mti^U.-, .    ^'*    ;°" 

j^.e,boundar>^c-.^---      f-Co„v.n- 
Instructions   to   delegates, 

,ion.   1.^0^3.   173^  Constitution.    167; 

mon   law  of  nations.  439. 

International   "case.'  "^  ''""^■*J^^^^  „,  the 

I     1  II     Mr    lust  ce.  on   sovereignty   oi    "■'- 

''sA?;,   '33    judge    North  Carolina  tircu.t 

ro.  M    351  ■    on   distinction   between   con- 

frer'siefof  a"  civil  and  criminal  nature. 

429.  431.  442. 


Jackson.  Andrew,  refused  third  term  «  pres- 

Jat;:;.'Mtr  Ja.-..  secretary  of  Federal 

Convention,  150.  r,v»nue  of 

J—  r"  in'  r^r'^Uues^r  92-3; 

s::a;^=h?-o.^.f^-'r'"°^ 
,,2:t;:a::;:a^r^;^V7^ 

^'e^r  -1°  :."ostion  respecting  power  of.  to 

,  ="""'"l;tJ  CTanceilir'.^ecision  of.  suit  of 
^Tnt;edStat«\"g:iLt'Confederategovern- 

The    Actnc,   U'-t    -—'• 


Court  ol  Appeals.  225;  on  Grenville'i  Act 
„(  im  and  Vn:thod  of  Confederation  for 
settling   boundary    disputes.   2.«)-l. 
J.mc.toin,  first  representative  assembly  m 
America  held  at,  74,  .    .       ■       ai. 

J.y.   Ihn.  on  Articles  of  Confederation.^^ 
^T;   clerk   of    commission   to  ad,ust   New 
Y^rk-New  Jersey  boundary  dispute    1^^. 
116    and  The  l-.deraliil.  164,  205,  314.  M>i . 
Vgen*  "la,.achusetts.New  York  boundary 
dispute.  235  ;  advocated  Const.tut.ot,  m  N^w 
York  Convention.  315;  Chief  Justice.  Cir- 
cuit Court  for  District  of  New  N  ork.  350. 
com.;  s"ioner.  case,  of   United   States  v 
S  353;  opinion  respecting  inclusion  of 
criminal  law  in  common  law.  441. 
Jeffmon   Thomas,  drew  up  rep..r.  re,ec.mg 
Lord   North's   conciliatory   resolution.  28. 
chairman   drafting  committee.  Dcc.aration 
of   independence.  2<;;  draft  mwritinKjC. 
presented  to  Congress.  30.  33.   Y^...'*" 
ment  of.  respecting  authorship  of  Uc^lara 
"on  of   ln.leVndeiice.  30  note;  u^ue^^Ked 
by    English    liberal    writers.   36.   36   note, 
and  1-rench  idea,  and  conceptions.  36   36 
no°e    views  of.  respecting  Articles  of  Con- 
Mention.  47;  on  colonial  law,  of    New 
England.   97;   on   colonial    laws    98.    re- 
fused third  term  as  president.   US 
JekyU.  Sir  Joseph,  on  laws  of  conquest  and 

discovery.  93   "ote 
}rr.  And?:raiff  Reconstruction  Acts. 

Jo^son.  Thomas,  meml^r  co"rt.  Massachu- 

setts-New  York  boundary  dispute,  235. 
Johnson.  William  Samuel.  Connecticu    d.^  ; 
late  to  Fe.leral  Convention.  152.  on  ncc 
^  L   of   mamtaining  State  government  . 
TsO    statement  of,  concerning  ditTerent  con^ 
cept'ions   of   a   State,   181;   agent    case^  o 
Ppnnsvlvania  v.  Connecticut.  2M.  mviiiDcr 
Tourt    Ma    achusetts-New   York  boui.  ary 
dispute   235;  motion  of,  respecting  exten- 
sion   o     Jurisdiction    of    Supreme    Court. 
2M    264   265    374;  considered  special  pro- 
vision fir  se  .ling  suits  between  States  un- 
necessary'   269 ;    mer^ber    Committee    on 

JS:n''^l^°"J-«ice.    opinion.    reM>ectmg 
Cherokee  Nation  as  a  domestic  State.  .188. 

act.  442.  , 

Johnson  v.  Mcintosh.  91,  421. 
Joint-stock  Companies,  definition  of.  68.  ad 

vantages  of.  69 
Jones  V.  United   States.  379  note. 


INDEX 


591 


Jonc  Jo,c,.h,  meml>.r  of  co"r.    Pcn"»ylva 
,„a  Connecticut  '">""'>»7 /''"'"''•  ".V  ,„ 
J«„ri.at»  of  the  C.uinental  Congrc**.  17,  i.». 

Juurnal  of  Keaer.l  Convention,  155.  156.  IW. 

Jumciaf  co^miMinns.    temporary,    provi.led 
^T.r   by  "inth  article  of  Confederation   2.'9. 

Covncl   on.  230;   ca»e»   se  tle.l   Ly.  -'     ■» 
,,         „K„ifkaiKe  of.  m  .  Conisrcss  refused 
to  aiM-oint.  c.itr.iversy  between  New  Jer- 
sey  anil   VirRiMia.   242-4 
Jiulicial  po«er.  un.ler  Confcleration,  44   45 
^   I'w    llOivte,  126,  WX),  2IO.-(  4C„.  22')./ 
U.  247-0.  2>^'>.  .Ul-2,  «S-7;  dcterni.na 
tiuM  of  coT.stiimn.naliiy  l>y.  ''5.   '"I;   '-'• 
3!^9    174;   extension   of,  to  territorial   di«- 
put'es,  102.  lOH.  119  note.  125:  in  colonies. 
1.12  J.  under  Slate  constitutions.  Ui.     36. 
IW.9     provi-iions  for.  Randolph  plan.  \b). 
250  .'l  sn,     provision  lor,  Patterson  plan. 
177  250;  necessity  for  a  common  judiciary, 
247     vsted  in  Supremo  Court,  2^2  .(  J>1, 
374c(  s.a  .  eNtcn.lcd  to  internatmiial  ques- 
>,i     I    r-,      ?78-    of    Stales,   hcuiiid 

tlOllS.     i<«     Cl     Si  'I-    •"';•  ,     ,,,    7f|. 

by  the  Constitution.  .103;  i.ature  "f.^-*'-?'?; 
extent  of,  defined  by  ConKress  342;  m 
X-m  ^e:.cd.  3-12,  398;  defined  by  Court 
TeH    .U3;   influence  of   I-nRb^li  common 

3^1-9  an  American  case.  349;  distinction 
between  judical  and  other  P"")'!'-,*' ;'••'"  ;^' 
se,,.;  finality  of  decision  essentia!  to.  360. 
400;  onlv  power  possessed  by  cour  374 
375;  contrasted  with  political  P"""'-^^* 
ct  s.-il  extent  and  exercise  of,  3W  41M , 
of  Federal  an.l  State  courts  concurren  . 
4n.l4;  political  power  may  become  ju- 
dicial 420  4.  extends  to  cases  only.j4.7- 
434;  relation  of.  to  law  and  eqn'ly.  a''" 
m.ralty.  martinie  and  international  law. 
438  etseq.:  of  United  States  over  States. 

Judiciary  .Act.  1789,  350,  402-4,  414.  416.  429^ 
iurisdicVn.  appellate  of  Congress  under 
Confederation.  44;  admiralty,  213,  218,  -.0 
<•(  jci  defined,  400;  determination  of.  4U1- 
2;  maritime.  447  9.  See  ah.'  Supreme 
Court.  Jurisdiction  of. 

Kendal.  Postmaster-General,  v.  Stockton  and 

Ke^nnedy.  Archibald,  member  Massachusetts- 
New  Hampshire  boundary  commission,  119 

Kennet  v.  Chambers,  379  note. 
Kent,   James,  on   dependency  of  territories 
upon  Congress.  295. 


347  8. 


Kentucky,  creation  and  admmion  of  Mate 

of,   290. 
Kepner  f.  I'nited  States,  .131.  442-3. 
Kilbourn  v    Thompson.  .142  3 
KiuK     .See  Crown  of  Kntfland. 
Kind  in  Council,  appeal  to,  100  fl  Sf q.iti, 
34H,  420;   leKislat    e  power   of,  200;   .New 
Hampshire   dismcmbere"!   by,  2.'«, 
King's  Bench,  decisions  of.  94,  346  7, 
King  V   McLean  Asyhim.  431. 
King  of  Spain  v.  Maibado.  422 
King's  Province.     -SV.-  Khode   Island 
King    Rufus.  on  procedure  in   I  ederal  Con- 
vention.   154;    on    reliresentation    of    New 
Hampshire    in    Federal    Convention,    1/5; 
motion  of.  respecting  Kandollih  and   Pat- 
terson   plans,    179;    agent,    Massachusetts- 
New  York  boundary  dispute,  235  ;  opposed 
to  limitation  of   judicial  power  of  L  nited 
States.  252;  member,  Committee  on  Style, 
277  note 
Koonce  V.   Doolittle.   400. 
Kwanan.ikoa  v    Pohbiank,  454-5. 
Kyd.  Stewart,  on  corporations,  66-8. 

La  Abra  Silver   Mining  Company  v.  United 

States.  431 -.3.  ^      _ 

Land  and  Trading  Company,  grant  by  Coun- 
cil of  New  Kiigland  to,  79.  ... 
Land  tax,  provision  respecting,  in  Articles  ol 

Confederation,  42 
I  ano  County  V  the  State  of  Oregon,  370. 
Ungdon.  John,  on  spirit  of  concession  neces- 
sary for  establishment  of  Constitution,  172. 
Uw  and  Equity,  definition  of,  4.18;  how  un- 
derstood by  framers  of  Constitution,  440-1. 
Uw  of   Nations,  in  the  Constitution,   IW; 
power    ol    Congress    to    punish    olTenccs, 
against.    167.    211;    recognized    letters    of 
nianiue  and  reprisal.  167;   recognizes  cap^ 
tures   on    .and   and   water.   167:    rights   of 
presidents  under.  .382:  relation  of.  to  com- 
mon law,  4.W,  448-9.  c,  ;  A 
Law,  Richanl.  commissioner,  case  ol  umtea 

States  V.  Todd,  353. 
Lechmere.    See  Winthrnp  v.  Lcchmere. 
Lee    Arthur,  negotiated  treaty  with  France, 

February  26,  1778,  35. 
Lee.  Richard  Henry,  motion  of.  in  Congress 
for  a  declaration  of   indepen.lence,   29-30, 
34,  40,  135,  217:  views  of.  respecting  Jef- 
ferson's draft  of  the  Declaration  of  Inde- 
pendence. .30  note. 
Legislative  Department,  two  branches  of,  25, 
76    158    172-3:   provisions    for,    Randolph 
plin.   158  9.   161,   172  et  seq..  190,  250-1; 
provisions  for,  Patterson  plan.  177-8;  com- 
promises   respecting,    in    Federal    Conven- 
tion. 172,  187  tt  seq.;  questions  of  repre- 


592 


INDEX 


M 


wnt.tion  in,  172.  173  f!  itq  :  cqiul.ty  of 
Stairt  ill.  175-7;  Connfcticul  prop<)»»l  can- 
crrninu.  17">.  <1ivcr»ily  of  vicwt  ruprcting, 
181  (•/  i.</..  viclDiy  of  Ihr  »mal'fr  Stairs 
in  Ihr  tnaltfr  nf  ihe,  185 .  «millnTii  Sulci 
■i«l  two  ihirdi  vote  of.  1H»;  IrKi'laiive 
bramh  a  check  iip<m  rxeciUivr  m  iiialliT 
,.f  irealicj.  IWJOO;  «  check  upon  the 
kgiOature.  2X10*1  itq.;  imtx-ai  limenl  of  ol- 
fiitri  of  thr  I'nitH  Stalci  rcitiovcd  from 
judicial  to.  ai.  vfstrd  with  extciie  of 
politi.al  power,  376  «•/  sf>l 

L«Ki«latue  IViwcr*.  prescribed  by  M»y- 
fl.mcr  c.mnia^l  V  "'  Confederation,  43  et 
i.-,;  t.'7,  liiO,  173,  181,  341  of  Vast  India 
(.■.imi'.iMv.  70;  n.t  Kmnlrd  Lv  first  Virginia 
charter,  71:  of  I/indon  Compai" .  72:  '•( 
colonie'i,  84  note.  85  note.  W,  note.  l.U-3: 
of  Privy  rmtncil,  "W;  nnder  State  cnn»ti- 
tution^.  1."i7  erant  of.  under  Constitu. 
tioti,  137,  IW  1.  .'8<>.  342,  467. 

Leverelt,    Governor    of    Massachusrttt,    105, 

IW) 
Lexington,  battle  of.  26.  28,   129. 
Lincoln,    .Mir.iham.    blockade    of    southern 

port*  by.  Xii. 
LivingMoM.    I'hillip,  member.   MassachuJettJ- 
New     Hampshire     boundary     commusion, 
liy  note  .     ,  . 

Livingston.  Robert  R..  member,  drafting 
committee,  Declaration  of  Independence. 
30  remarks,  case  of  Pennsylvania  v  Con- 
necticut. 234;  agent.  Massachusetts-New 
York  boundary  dispute.  ZiS .  advocated 
Constitution  in  New  York  Convention,  315. 
Living-.ton.    Walter,    agent,     Massachusetts 

New  York  boundary  dispute,  235. 
Locke,  doctrines  of,  in  Declaration  of  Inde- 
pendence. 30  note,  35.  ib  note;  Thomas 
Jefferson  a  student  of,  36  note. 
Lcndon  Company,  southern  portion  of  North 
American  coast  assigned  to  in  1606.  71,  77; 
provisions  ot  charter  of  IWW  to.  71-2,  77; 
summary  of  third  charter  of  1612  to.  72  4; 
commission  of,  convoking  representative 
assemblv  at  Jamestown.  64,  powers  of,  re- 
sumed by  Crown  in  1624,  76;  separated 
from  Plymouth  Company  under  charter  of 

1609.  77.  .  „ 

Londuns  I'lantalion  in  Majsachusflls  Hoy  m 
Xi-w  England,  title  of  local  government 
established  at  Salem  by  Massachusetts 
charter.  1628-9.  81. 
Lords  Commissioners  of  Trade  and  Planta- 
tions, opinion  renr'ered  to,  respecting  F..ng- 
lish  common  law  in  relation  to  colonies, 
96,  97 ;  foundation  and  purpose  of,  9).  100. 
109;  appeals  from  colonial  courts  to,  100; 


decree  of.  reipectinf  Alherlon  purrhaN. 
lal;  disallowed  New  Jertey  Act  of  1748, 
111,  114  15,  117;  case  of  Pttm  v.  Lord 
BalMmiire  referreil  to,  123, 

Lords  of  Appeal.     Stt  Appeal,  Lords  of. 

Lona^iiinna.   Ike.  477  note 

I-owell,  John,  agent.  .\1assachuietts-New 
York  boundary  dispute,  235 

Luke  V.  Mulbert,  224  note. 

Lurton,  Mr.  Justice,  on  constitutional  equal- 
ity of  States,  294. 

Luther  v.  Borden,  303  note.  379  note,  380  2, 
192 

Madison.  James,  urged  a   Federal  Constitu- 
tion.  47.  48,   summary   of    weaknesses   of 
Articles  of  Confederation  by.  47-53;  char- 
acter of,  48;  lea<lership  o(,  in  Federal  Con- 
vention.  48.    views    of,    respecting   public 
offices.    53,    and    authorship    of    Virginia 
Plan,  53.  195,  2tM),  2(U.  250.  279;  on  situa- 
tion of  States  ill  matters  of  commerce,  55; 
part  of.  in  convocation  of  Annapolis  Con- 
vention. 56,  145;  Virginia  delegate  to  An- 
napolis   Convention,    56,    reporter    of    the 
Federal   Convention,   147 :   "  father  of   the 
Constitution,"  147.  237,  335 ;  on  terms  "  na- 
tional" and  ••  federal,"  161-4,  2ai,  and  The 
Federalist.  164.  205,  314,    362;  on  coercion 
of  States.  165.  2W-4,  206  7.  257.  279,  2«0, 
281  ,   opposed  to  equal   suffrage  of   States 
in   national  legislature,   173-4,   177.  on   sit- 
uation of   larger   Slates  respecting   Senate 
suffrage  compromise,  186-7;  statement  of, 
respecting  president   as   agent   in  treaties, 
198   note;   in    favor  of   a  check  upon   the 
legislature,   200-1;    In    favor   of    granting 
Congress   power   to   negative    State    legis- 
lation, 202;  member  of  court.  South  Caro- 
lina-ticorgia    boundary    dispute,    237;    op- 
posed  to  limitation  of    judicial   power   of 
the    United    Stales,   252-3;    favored   estab- 
lishment of  inferior  tribunals  by  national 
legislature.  253;  views  of,  respecting  nomi 
nation  and  appointment  of  Supreme  Couri 
judncs.  255,  258;  on  jurisdiction  of  nalioral 
judiciary,   259.    264.    265;    motion    of,    re- 
specting expression  "  judicial  power,"  2'iX  ; 
in    favor    of    giving    paramount    effect    to 
treaties,    276  7;    member.    Committee    on 
Style.  278  note:    in    favor   of   equality   of 
Western    States,   291,   2'M ;    views    of     re- 
specting   the    systim    of    double    Constitu- 
tions, .302,  in   favor  of  popular  ratification 
of    Constitution,    .1(15  6.    MV .    opposed    to 
conditional  ratification  of  the  Conslili  tion. 

309.  proposed  amendments  to  Constitiiti   n, 

310,  Hi  el  seq.;  advocate  of  Constituuon 


INDEX 


593 


in  Virginia  Convrntion.  ,1U ;  in  Uvur  of 
iiiciir|i<ir«liii||  amrnclmriilt  inio  lr«l  of 
CoiKliliilion.  Ml.  on  nirllioil  of  drcting 
prmdent.  3i9;  on  amrnflminti  to  Consti- 
tution. JJ9-J0;  on  nitirprrtalion  of  ("on- 
stitutton  by  Stale  C'oim  citi.iiu,  .VU  2.  In- 
ter to  Haynf,  on  rotnlitiilinn,  3J5  7 ;  on 
necctiily  fur  a  Siiprimr  t  utirt.  .<5*( ,  vicwi 
of,  sprolind  exrriisf  of  powrr  by  court*. 
374.  |iro|io«cil  une«tinf(  national  judiciary 
with  p<ilitical   functiiiMf,  4tH 

Maine.  Sir  Hiiiry  Sumner,  on  Trench  in- 
fliHiui-  on  American  political  philosophy, 
SS  !• .  iin  tlie  Supreme  Cmirl,  280 

MaiHtieM,  I/iril,  on  IcKi'lativc  power  of 
KinK.  'M.  95.  %.  W.  347,  on  l)v-law»,  347; 
on   mternaliimal  and  common  law.  448 

Marliury  v.  Ma.luon.  y.I.  .V/>  8,  3H4,  427. 

Maritime  juriniliction,  juilici.il  power  of  the 
I'nited  States  extended  '"  casej  of,  212, 
447.  449. 

Marshall.  Chief  Justice,  on  Articles  of  ("on- 
federalion,  47,  on  tovereiRnty  of  Males. 
59  (lO.  on  rinhM  nf  (ll^Cl'^fry,  91;  case  of 
Ihr  -hliVt-  Iriiil  before.  JJi ;  on  division 
of  sovirciKU  powers.  M4.  M^> :  on  ■liities 
of  jiiiliiial  Icpartnu'iit.  Mi\.  370;  on  de- 
terniination  'if  i  ■I'ititiitioTiality  by  n'dic- 
ijiy,  M'-i .  on  ad  "f  Coii^;res5  enlarging 
oritjinal  jurisdiction  of  Supreme  Court. 
366  8  on  ihc  judiciary  and  inlcrnvtiofial 
relations,  377  8;  on  the  judicial  nature  of 
a  treaty  a»  a  cntrait,  .178.  opinion  of, 
respei  iiUK  the  appellate  jnrisdici  on  of  the 
I'ntte  I  Slates  and  the  li.ihility  of  States, 
409  IJ;  on  cases  arisiiiR  iii  law  aid  equity, 
412.  ■l.W :  on  concurrent  power  i  of  Fed- 
eral and  Stale  Courts.  416;  "case"  de- 
fined liy,  427  8;  on  stale  as  a  corporator 
not  exempt   from   suit.  4fi4-5. 

Martin,  Luther,  in  favor  of  equal  suffrage 
of  Slates,  176;  member  compromise  com- 
mittee. Senate  sutTrage  controversy.  185 ; 
motion  of,  respectinR  supremacy  <if  laws 
of  union.  275-6  opinion  of,  respeitmg 
amendments  to  C'unstiHilion.  .100,  301  ;  in 
fav'ir  (f  separation  of  judicial  and  politi- 
cal powers.  418. 

Martin  r.   Hunter,  405  9,  410,  453 

Marviand.  represented  at  .-Mhany  Congress, 
11  Roverncil  under  a  charter  to  a  pro- 
pririor.  22;  last  state  to  ratify  Articles 
of  Confederation.  40,  2.il.  293;  compact 
of,  with  Virginia  an  encroachment  on 
Federal  atrthority,  49;  laws  of,  fnv'iring 
own  citizens,  49;  part  of.  in  .Nnnapidis 
Convention,  55.  56,  145 :  representative  as- 
lemblies  in,  84  note;  grant  of,  to  second 


Lord  flallimore.  121 ;  charier  of.  121.  121 
iMite,  122-.I ,  boundary  dispute,  1215,  col- 
onial governor  atnl  courts  of,  ap|M>tnird  by 
projirietor,  l.W,  appointed  drlenales  to 
I'ederal  I  onvenlion,  147,  iiulriu  limn  to 
delegates,  153;  in  fawir  of  eipial  repre- 
sentaiioii  of  Slates  in  Senate,  184,  185; 
constitution  of,  l'>6,  MV .  views  of.  re- 
specting independence  of  Rhode  Island, 
241  ;  contention  of.  respecting  northwest- 
ern territory.  291  2.  2'»2  note;  vole  of,  on 
question  of  piipular  raiiticalion  of  Con- 
ililulion,  .105,  3(18;  raiiticalion  of  Consti- 
tution by,  311,  571  note,  uncotisliluiional 
law  of,  taxing  agent  of  government.  3<>8- 
9;  ratification  of  first  ten  amendmenis  by, 
572  note 

Mason,  lieorge,  Virginia  delegate  to  An- 
napolis Convention,  56;  drafted  Virginia 
Bill  of  Kights,  135;  on  proceilure  in  Fed- 
eral Convention,  154,  views  of,  respecting 
coercion  of  Slates,  164-5.  203.  205-6,  mem- 
ber compromise  conimiltec.  Senate  suffrage 
dispute,  185 ;  ojiposed  to  recognition  of 
slavery  in  Consliiiilioii,  189  favored  crea- 
tion of  inferior  tribunals,  2,'9 :  in  favor 
of  f<|iiality  of  Western  States.  291.  294; 
in  favor  of  popular  ratification  of  Con- 
stitution. 305  6,  307.  opposed  Constitution 
in  Virginia  (-onvenlion,  313,  proposed  bill 
of    rights    Id   I  onsiiiuti.in,    .128 

Massachusetts,  separatists  from,  founded 
Connecticut,  4  :  (icneral  Court  and  .Assembly 
of,  4,  78.  HZ  .^.  1,12  meinbrr  of  New  Fng- 
land  Confederation,  6;  juri'diclion  of,  not 
rccogni.'ed  by  Rhode  Island.  7;  delegates 
from,  '.o  .Mbany  Congress,  II;  delegates 
from,  lo  First  Continental  Congress,  2.^ ; 
resolution  of  Hou.se  of  K'epresentative  of, 
respecting  a  Continental  Congress,  2i; 
troops  raised  by,  without  consent  of  Con- 
federation, 49.  government  developed  by, 
model  for  nortliern  colonies,  64;  charters 
of,  65.  79-82.  83-4.  84  note,  131.  132.  com- 
pared with  Vir.inia.  78,  83.  GoicriKtr  a^  i 
Comfiviy  of  (,',  Maltachusclts  Biiy  in 
AV;cc  ';ii.//<iiio,  79,  80.  81  ;  representative 
assemblies  in,  82-3,  84  note,  judiciary 
under  constitution  of,  l.W  9,  ndl  of  .lights 
of,  140:  appointed  delegates  to  f-'edcral 
Convention,  147;  instructions  to  delegates, 
l.sj;  vole  of,  on  i|uestion  of  equal  suf- 
frage of  Stales  in  Senate,  184 ;  opposed 
to  taxing  ex|iorts,  188,  practice  of.  re- 
specting appointment  of  public  officials, 
19<i:  first  prize  court  established  in,  216; 
Provincial  Congress  of,  216,  selection  of 
judges  by  executive  with  consent  of  leg- 


594 


INDEX 


ft 


islative  in.  258;  recognized  tndependert 
statehood  of  Vermont,  241;  claim  of,  to 
western  New  York.  292  note;  claim  of. 
to  northwest  territory.  292;  in  favor  of 
popular  ratification  of  Constitution,  305. 
308;  ratification  of  Constitution  by,  310, 
571  note ;  amendments  to  Constitution  pro- 
posed by.  330 ;  unconstitutional  act  of  Con- 
gress taxing  an  agent  of,  369. 

Massachusetts  v.  New  York,  118  note,  234- 
6.  237.  , 

Matthews.  Mr.  Justice,  on  a  government  of 
laws.  140;  on  interpretation  of  terms  of 
common  law.  443-4;  on  immunity  of  States 
from  suit.  459. 

JtfayHower.  The,  3. 

Mayflower  Compact,  entered  into  by  Pil- 
grims. 3;  legislative  power  prescribed  by, 
5;  set  forth  .American  conception  of  Sute 
as   agent  of  the  people,  9. 

Melville.  General,  governor  of  Grenada.  94, 
96 

Mexico,  Treaty  of  February  22.  1819,  with 
United  States,  430. 

Militia,    State,    power    of    Congress    over, 

167  8.  ,    ..... 

Miller,  Mr.  Justice,  on  three-fold  division 
of  government,  342-3;  judicial  power  de- 
fined by,  343;  on  United  States  as  claim- 
ant and  actor  in  court,  461. 

Minor  v.  Happersett,  303  note,  444. 

Mississippi  :•.  Johnson,  383-4,  386. 

Money,  power  to  borrow,  and  emit  bills 
given  to  Congress.  43,  166;  power  to  coin 
and    regulate    value   of,   166. 

Monroe,  James,  on  results  of  the  Declaration 
of  Independence.  33;  member  court.  Mass- 
achusetts-New    Y'ork    boundary     dispute, 

235. 

Montesquieu,  threefold  division  «>*  fovern- 
menl.  a  principle  borrowed  from,  250,  341, 
342. 

Moore  v.  United  States,  444. 

Moot  Cases,  judicial  power  of  Constitution 
.loes  not  extend  to,  434. 

Morev,  on  Virginia  charter  of  1606,  70; 
on  colonial  constitution  of  Virginia,  76. 

Morgan.  George,  agent.  New  Jersey-Virginia 
dispute,  242,  243,  244;  petition  of,  to  Con- 
gress, 243-4. 

Morley,  Lord,  on  influence  of  French  politi- 
cal philosophy,  36 

Morris,  Charles,  member.  New  York-New 
Jersey  boundary  commission,  116. 

Morris.  Gouverneur,  opposed  to  equal  suf- 
frage of  States,  148,  173;  views  of,  re- 
specting tenure  of  judges,  263;  motion  of, 
respecting  extension  of  jurisdiction  of  Su- 


preme Court,  264;  doubts  of,  respecting 
appellate  jurisdiction  of  Supreme  Court, 
273;  in  favor  of  giving  paramount  effect 
to  treaties,  277;  member.  Committee  on 
Style,  277  note;  opposed  to  equality  of 
Western  States,  291,  293,  294;  in  favor 
of  equal  suffrage  of  States  in  Senate,  300; 
question  of,  respecting  extent  of  judicial 
power  to  matters  of  fact  as  well  as  civil 
law,  447. 

Morris,  Robert,  opposed  to  equal  vote  of 
small  States,  148;  proposed  George  Wash- 
ington as  President  of  Federal  Conven- 
tion,  148-9. 

Morse,  Mr.  Justice,  on  judicial  power  and 
moot  cases.  434. 

Munday  v.  Vail,  400. 

Murray  v.  Hoboken,  432. 

Muskrat  v.  United  States,  433. 

Nabob   of  the  Carnatic  r    The  East  India 

Company,  379  note,  386. 
Nathan  v.  Commonwealth  of  Virginia,  58-9, 

455. 
Nations,  and  the  question  of  coercion.  282; 
immunity  of,  from  suits,  452,  454;  a  court 
of   the,  468.     See  also   Law   of    Nations, 
Society  of  Nations. 
Naturalization,    Rule    of,    power    vested    by 
Constitution  in  Congress  to  establish,  166; 
provisions   for,    Patterson   plan,   178. 
Navigation  Acts.  26. 

Navigation,  laws  of.  repealed  by  Parliament 
in  1849.  28.  state  of.  under  Confederation. 
145 ;  demands  of.  considered  by  .Xnnapolis 
Convention,     145-6;     position    of    certain 
States  in   respect  to,   188-9:   recommenda- 
tions   of    committee    concerning    acts    of. 
Federal    Convention,    188;    two-thirds    re- 
quirement   inserted   in    report,    188;    com- 
promise respecting,  in  Federal  Convention, 
189-90. 
Navy,  power  of  Congress  to  build  and  equip, 
43,  167;  president  commander-in-chief   of, 
167,  197;  not  to  be  kept  by  States  in  time 
of  peace,  210,  212. 
Nelson,    Mr.    Justice,    on    division    of    sov- 
ereign powers,  335;  held  that  States  can- 
not tax  agency  of  the  government,  369; 
on  court's  relation  to  the  government  and 
to   the   States,  369-70;   opinion   of,   invol- 
ving distinction  between  political  and  ju- 
dicial  powers,   386-9 
Neilson,  Thomas,  member  of  court,  Pennsyl- 
vania V.  Connecticut,  232. 
New    England,    unpopularity    of,    41 ;    first 
charter,    1606,    70-1,    77;    second    charter, 
1620,   77-9;   third   charter,    1628-9,   79-82; 


INDEX 


595 


northern  colonies  modeled  upon  charter 
and  institutions  of,  71 ;  the  Plymouth  Com- 
pany, 78-9;  Council  of,  79;  charter  an- 
nulled in  1684,  82;  royal  charter  of  1691, 
82;  Jefferson  on  colonial  laws  of,  97; 
grant  of,  by  Charles  II  to  Duke  of  York, 
122. 

New  England  Company.  See  Plymouth 
Company 

New  England  Confederation,  1643,  indicates 
existence  of  idea  of  colonial  union,  6; 
aims  of,  6,  7;  summary  of  articles  of,  6-9; 
snt)scribed  to  by  commissioners  of  colon- 
ies, 9:  prescribes  equal  representation  of 
colonies.  11  ;  advantapes  of  union  shown 
by.  11  :  complaint  of  Rhode  Island  against, 
101-9;  text  of,  471-6.  See  also  Commis- 
sioners of  New  England  Confederation, 
and  Confederates,  New  England. 

New   England  Restraining  .Act,  1775,  27. 

New  Hampshire,  represented  at  .Albany  Con- 
gress, 11;  establishment  by,  of  revolution- 
ary government  recommended,  29.  129; 
late  attendance  of,  at  Federal  Convention, 
58,  175,  176,  185 ;  representative  govern- 
ment set  up  in,  85  note;  boundary  disputes, 
lis,  118  note.  238-41,  421;  instructions  to 
delegates  to  Federal  Convention,  150;  in 
favor  of  equal  suffrage  of  States,  175, 
185:  New  Hampshire  grants,  238  ei  seq.; 
recognized  independent  statehood  of  Ver- 
mont. 241  :  in  favor  of  popular  ratification 
of  Constitution,  308;  ratification  of  Con- 
stitution by.  312,  315,  S71  note;  amend- 
ments to  Constitution  proposed  by,  330; 
ratification  by,  of  first  ten  amendments, 
572  note. 

New  Haven,  member  of  New  England  Con- 
federation. 7 

New  Jersey,  compact  of,  with  Pennsylvania, 
an  encroachment  on  Federal  authority,  49 ; 
commercial  situation  of,  55 ;  represented 
at  Annapolis  Convention,  56,  146;  dele- 
gates of,  to  Federal  Convention,  57,  146; 
representative  assemblies  in,  85  note; 
boundary  disputes,  109-18,  238  et  seq.; 
grant  of,  to  Lord  Berkley  and  Sir  George 
Carteret,  116;  in  favor  of  equal  represen- 
tation of  States  in  Congress.  174;  in  favor 
of  equal  suffrage  of  States  in  Senate.  184; 
in  favor  of  mdepcndence  of  Rhode  Is- 
land. 241  ;  vote  of,  on  popular  ratification 
of  Con> 'tution,  305,  308;  ratifiiation  of 
Constitution  by,  309,  310,  571  note:  con- 
stitution of.  349;  statute  of  New  Jersey 
of  1778  declared  unconstitutional,  349:  rat- 
ification liy,  of  first  ten  amendments,  572 
note. 


New  Jersey  v.  Virginia,  238,  239,  242-4. 

New  Jersey  Assembly  Acts  relative  to  boun- 
daries. Act  of  1719,  110,  111;  Act  of  1748, 
111,  114;  Act  of  1764,  101;  Act  of  1772, 
117. 

N«w  Jersey  Plan.    Sec  Patterson  Plan. 

New  York,  represented  at  Albany  Congress, 
11;  address  of  Provincial  Congress  of,  to 
Washington,  27  note;  laws  of.  favoring 
own  citizens,  49;  represented  at  Annapo- 
lis Convention,  56,  146;  charter  of,  86 
note;  representative  assemblies  in,  86  note; 
conquered  from  Dutch  and  ceded  to  Great 
Britain  by  teaty,  91 ;  boundary  disputes, 
109-18,  118  note.  234-6.  237,  238-41,  292 
note,  387 :  constitution  of,  136-7,  201 ;  sen- 
ate, court  of  appeals  in,  139;  appointed 
delegates  to  Federal  Convention.  147;  in- 
structions to  delegates,  Federal  Conven- 
tion, 152;  ratification  of  Constitution  by, 
secured  by  Hamilton,  164,  164  note:  vote 
of,  respecting  equal  suffrage  of  States  in 
Senate,  184,  185;  and  independent  state- 
hood of  Vermont,  241,  290:  claim  of,  to 
-Northwest  Territory,  244,  292.  292  note; 
opposed  to  popular  ratification  of  Consti- 
tution, 305 ;  ratification  ot  Constitution  by, 
312,  314-15,  571  note:  amendments  to  Con- 
stitution proposed  by,  330:  ratification  by, 
of  first  ten  amendments.  572  note. 

New  York  .Assembly  Acts  relative  to  boun- 
daries. Act  of  1717,  109.  110,  111.  113, 
114:  Act  of  1719,  114;  Act  of  1754,  114, 
115:  Act  of  1771.  117. 

New  York  v.  Connecticut,  386. 

New  York  City,  first  seat  of  government 
under  Constitution,  i22 

Non-Importation.  Non-Consumption  and 
Non- Exportation  Agreement,  considered 
by  Congress,  26 

Norris  v.  Staps,  67. 

North,  Lord.  Conciliatory  Resolution  of 
February  27,   1775.  27;   rejected,   28. 

North  and  South,  distrust  between.  41 ;  dis- 
tinction between.  77 ;  colonial  development 
contrasted,   83. 

North  Carolina,  delegates  of.  to  First  Con- 
tinental Congress,  24 :  commercial  situa- 
tion of,  under  Confederation.  55:  ratifica- 
tion of  Constitution  by.  46.  309,  571  note; 
appointed  delegates  to  Federal  Convention, 
49,  146:  instructions  to  delegates  Federal 
Convention.  150:  charter  of.  85  note:  rep- 
resentative assemblies  in,  85  note :  bound- 
ary disputes,  118  note,  119  note:  vote  of, 
respecting  equal  suffrage  of  States  in  Sen- 
ate, 184,  185:  in  favor  of  popular  ratifi- 
cation of  Constitution,  305,  308;   ratifica- 


.ii 


^ 


596 


INDEX 


tion  of  constitution  by,  316,  S71  note; 
amendments  to  Constitution  proposed  by, 
iX  ratification  by,  of  first  ten  amend- 
ments, 572  note. 

Northwest  Ordinance,  approved  by  first  Con- 
gress under  Constitution,  286;  summary 
of.  286-90 ;  interpretation  of  terms  of,  444- 
S ;  text  of,  514-19. 

Northwest  Territory,  cession  of  Virginia's 
claims  to,  242.  243.  244.  286,  290.  293;  or- 
dinance for  government  of,  286  et  stq., 
444;  Congress  pledged  to  create  States 
within.  290.  292  note.  292-3 ;  originally  part 
of  English  Province  of  Quebec,  292  note. 

Officers  of  the  army  and  navy,  to  be  ap- 
pointed by  Congress,  43;  Madison's  view 
of  public  officers.  53 ;  impeachment  of  na- 
tional officers,  Randolph  plan  respecting, 
159. 

Ohio  V.  Lafferty,  444-5 

Oliver,  Andrew,  member  New  York-New 
Jersey  boundary  commission,  1767,  116. 

Olmstead's  case,  220,  222,  222  note. 

Osborn  v.  Bank  of  the  United  States,  412- 
13,  428-9,  430 

Otis,  pamphlet  of,  2,  not  used  in  compilation 
of  Declaration  of  Independence,  25  note. 

Paca.  William,  judge.  Court  of  Appeals  in 

Cases  of   Capture.  223. 
Pacific  Railway  Commission,  In  re.  429-30. 
Pacific  Telephone  Company  v.  Oregon,  389- 

93- 

Paine.  Mr.  Justice,  interpretation  of  terms 
••  law  and  equity."  446-7. 

Paine.  Robert  Treat.  Massachusetts  delegate, 
first    Continental    Congress.   23. 

Pardons.   President's  power  to  grant,   197. 

Paris  Treaty  of,  France  and  England.  Feb- 
ruary 10,  1763,  14.  23.  94.  292.  347 ;  France 
and  United  States,  April  30.  1803.  377. 

Parliament,  acts  of,  infringing  upon  col- 
onial rights.  14,  23,  24.  46;  colonists  held 
by  Great  Britain  to  be  subject  to.  22;  peti- 
tione<l  by  colonies  for  redress  of  griev- 
ances. 2i:  colonists  could  not  be  properly 
represented  in.  25 ;  right  of.  to  regulate 
external  commerce  of  colonies.  25 ;  Ja- 
maica not  represented  in.  92 ;  power  of,  to 
legislate  for  territories  subject  to  Crown, 
93.  94,  95.  96;  conclusions  of  Privy  Coun- 
cil sanctioned  by.  125 
Parliamentary    Commission.    Rhode    Island 

charter  of   1644  granted  by,  85  note. 
Parsons.    Thcophilus.   agent.    Massachusetts- 
New  York  boundary  dispute.  235. 
Patents,  power  over,  given  to  Congress,  166. 


Patent,  Letters  of.    See  Letters  of  Patent. 
Patterson,  William,  delegate  of  New  Jersey  to 
Annapolis  Convention,  56;  member,  com- 
promise committee,  Senate  suffrage  contro- 
versy, 185;  views  of,  respecting  equal  suf- 
frage of    States,   174;   member  of   court, 
Massachusetts-New    York    boundary    dis- 
pute. 235 ;  summary  of  Randolph  proposals 
by,  251 ;  in  favor  of  ratification  of  Consti- 
tution by  State  legislatures,  305;  on  rela- 
tion  of  a  constitution  to  laws  passed  by 
a    legislature,    366.     Set    also    Patterson 
Plan. 
Patterson  Plan,  submitted  to  Federal  Con- 
vention, 164,  177,  256;  rejected  in   favor 
of  Randolph  resolutions,  164,  179;  referred 
to  Committee  of  Detail,  164,  260;  referred 
to   Committee   of    the    Whole,    177,   257; 
nine  resolutions  of   177-8;  a  revision  of 
the   Articles  of   Confederation,    178,  256; 
result  of,  179;  specified  a  plural  executive, 
195 ;  provided  for  a  check  upon  the  legisla- 
ture, 200 ;  provision  of.  resp>ecting  coercion 
of  States.  203.  205;  provision  of,  for  ju- 
diciary, 250,  251;  government  to  avail  it- 
self of  State  courts  according  to,  256-7; 
made  laws  of  union  within  grant  of  power 
superior    to    laws    of    States,    275;    pro- 
vision  of,   for  admission   of   new   states, 
291 ;  text  of.  525-7. 
Peace,  to  be  declared  by  Congress.  43 ;  Ran- 
dolph  resolution    respecting   questions   in- 
volving, 159. 
Penn   v.    Lord   Baltimore,   101,    121-5,   386, 

387,  420-1. 
Penn,  William,  "  scheam "  of,  for  union  of 
colonies.  6.  9,  10,  11,  476-7;  i«ea  of  union, 
9,  10;  essay  of.  Toward  the  Present  and 
Future  Peace  of  Europe.  9;  plan  of.  for 
colonial   union   shows   method   of   making 
colonies     self-governing     dominions.     11; 
agreement   of    sons   of,   with    Lord    Balti- 
more.   1732.    101,    104.   420-1;   charter   of 
Pennsylvania  granted  to,  122. 
Penhallow  r.  Doane,  447. 
Pennsylvania,    delegates    from,    to    Albany 
Congress,  11;  compact  of,  with  New  Jer- 
sey, an  encroachment  on   Federal  author- 
ity, 49;  interest  of,  in  navigation  of  Chesa- 
peake  Bay,  55-6;   represented  at   Annapo- 
lis Convention.  56;  appointed  delegates  to 
Federal   Convention.   57,   146;   instructions 
to    delegates,     Federal    Convention,    150; 
charter  of,  85  note,   122,  123;   representa- 
tive assemblies  in,  85  note;  boundary  dis 
pules,    121-5.   231-4.   237.  238,   241-2.   243. 
292;  but  one  branch   of  legislative  power 
in,  136;  constitution  of,  136,  365;  colonial 


INDEX 


597 


governor  and  courts  of,  appointed  by  pro- 
prietor, 138;  proposal  of,  for  bicameral 
system  in  national  leKislature,  172;  op- 
posed to  equal  suffrage  of  States,  173; 
opposed  to  election  of  senators  by  Slate 
legislatures,  180;  opposed  to  equal  suf- 
frage of  States  in  Senate,  174,  I8S;  re- 
pealed statute,  authorising  juries  to  decide 
admiralty  causes,  222 ;  in  favor  of  popular 
ratification  of  Constitution,  305,  308 ;  rat- 
ification of  Constitution  by,  310,  571  note; 
ratification  of  first  ten  amendments,  310, 
572  note. 

Pennsylvania  v.   Connecticut,  231  4,  237. 

Pennsylvania  r.  Virginia,  237,  238,  241-2, 
243 

Pensions,  acts  of  Congress  respecting,  350, 
365. 

Percy  v.  Stranahan,  379  note. 

Peters,  Judge,  decision,  case  of  The  Active, 
222;  District  Judge,  Circuit  Court  for  Dis- 
trict of  Pennsylvania,  350. 

Phelps,  Edward  John,  on  duty  of  Supreme 
Court    respecting   Constitution,   333 

Philadelphia,  meeting  place  of  First  Conti- 
nental Congress,  2i:  meeting  place  of  Fed- 
eral Convention,  57,  146;  Penn  anxious  to 
secure  land  for,  103;  petition  of  citizens 
and  merthants  of,  respecting  Court  of  Ap- 
peals in  Prize  Cases,  219,  239. 

Phillips  V.  Payne,  379  note. 

Phillips,  Erasmus  James,  member,  Massa- 
chusetts-New Hampshire  boundary  com- 
mission,  119  note 

Pickering,  observations  of,  respecting  Dec- 
laration of  Indipenilence,  30  note. 

Pilgrin"!,  enters  into  Mayflower  Compact,  3; 
Con  -cticut  founded  by  separatists  from, 
4;   views  of,  in  matter  of  compact,  5 

Pinckncy,  Charles,  on  attitude  of  smaller 
States,  respectini  reation  of  legislature, 
179;  motion  of,  question  of  power  to 
negative  State  k,  <lation,  178  note;  on 
distinct  commercial  interest  of  States,  188- 
9;  in  favor  of  appointment  of  S'lpreme 
court  judges  by  legislature,  255;  proposal 
of,  respecting  extension  of  jurisdiction  of 
Supreme  Court,  264. 

Pinckney  Plan,  submitted  to  Federal  Con- 
vention, 163,  251 ;  referred  to  Committee 
of  Detail,  164,  251,  260;  treaty-making  pro- 
vision  in.   198  note ;   text  of,  522. 

Pinckney,  Charles  Cotesworth,  m  tion  for 
compromise.  Senate  suffrage  controversy, 
184;  on  inclusion  of  slaves  in  rule  c5 
representation,  187;  on  distinct  commer- 
cial interests  of  States,  189. 

Pines,  Isle  of,  379  note. 


Piracies  and  felonies  committed  on  the  high 
seas,  Randolph  plan  respecting,  159;  ninth 
article  of  Confederation  deals  with,  210; 
courts  of  the  Confeilerated  States  for  trial 
of,  211;  power  of  Congress  to  define  and 
punish,  211.  215;  necessity  of  rules  for 
capture  anu  disposition  of,  213;  trial  of, 
under   Confederation.  214 

Plantations.  See  Council  for  the  Govern- 
ment of  Foreign  Plantations. 

Piatt    .Amendment,   379  note. 

Pleas.    See  Courts  of  Common  Pleas. 

Plyniouih,  member  of  .\'ew  England  Con- 
federation, 7;  jurisdiction  of,  not  recog- 
nized by  Rhode  Island,  7:  signs  Arti- 
cles of  N'ew  England  Confederation,  9; 
general  Court  of,  9:  Council  of  Plym- 
outh for  New  England,  77-8 ;  representa- 
tive assembly  in,  84  note;  Rhode  Isl.nnd 
complains  against  commissioners  of,  102. 

Plymouth  Company,  northern  portion  of 
North  American  coast  assigned  to,  by 
ch,-»rter  of  1606,  70,  71 ;  separated  from 
London  Company  by  charter  of  1609,  77; 
sec.  d  charter  of,  1620,  77-9;  becomes 
Council  of  Plymouth  for  New  England, 
77-8. 

Political  power.    See  Judicial  power. 

Poll  tax,  distinguished  from  land  tax,  42 

Pollock,  Sir  Frederick,  on  Rousseau's  in- 
fluence on  American  political  philosophy, 
36  note. 

Popham.  Sir  John,  drafted  first  Virginia 
charter,  70. 

Pest  offices,  to  be  established  and  regu- 
lated by  Congress.  43,  166 

Post  roads,  power  of  Congress  to  estab- 
lish,  166 

Potomac  River,  freedom  of  navigation  of, 
145. 

President,  power  of  Congress  under  Con- 
federation to  appoint,  43:  commander-in- 
chief  of  army  and  navy,  167.  197;  method 
of  election  of,  l%-7;  oath  of  office  of, 
197 ;  m?.y  be  removed  from  office.  197 ; 
powers  of,  197  et  seq.:  and  treaties,  197- 
9:  puMic  ministers  appointed  and  received 
by,  199 ;  veto  of,  on  proposed  legislation 
of  Congress,  200-2 ;  conduct  of  interna- 
tional relations  confided  by  Congress  to. 
376;  rights  of.  under  international  law, 
382;  duty  of.  respecting  acts  of  Congress, 
383-6.    See  alio  Executive. 

Prioleau  v.  United  States  and  Andrew  John- 
son, 461-2. 

Privy  Council,  appeal  to,  from  colonial 
courts,  96,  101  el  seq.,  348;  prerogatives 
of  King  exercised  in,  99;  legislative,  exccu- 


INDEX 


*^K 


.  598 

tive  and  judicul  powers  of,  99;  influence 
of,  on  settlement  of  boundary  disputes, 
230-1;  inriuence  of,  on  judicial  commis- 
sions. 230;  nature  and  jurisdiction  of,  109; 
decision  in  New  York-New  Jersey  boun- 
dary controversy,  117.  ... 
Prize,  ninth  article  of  Confederation  deals 
with  210;  courts  of  the  Confederated 
States  for  trial  oi  cases  of,  211;  power 
of  Congress  to  define  and  punish,  211: 
necessity  of  prize  procedure.  215 ;  appeal 
to  Congress  from  colonial  courts  in  mat- 
ters of,  217. 
Prize  Cases,   382-3. 

Prize    Courts,    first,    established    in    Massa- 
chusetts, 216.  resolution  of  Congress  under 
Confederation  respecting,  216  f(  seq.;  an 
international  court  of  prize.  447     See  also 
Court  of  Appeals  in  Cases  of  Capture. 
Proclamation   of    Kcbellion.   1775,  28. 
Proclamalunis.  345-6. 
Prohibitions  I),-l  Hoy.  345. 
Providence  Plantation.    See  Rhode  Island. 
Provost,    William,    member.    Massachusetts- 
New     Hampshire     boundary     commission, 
119  note  .      . 

Putnam,    Circuit    Judge,   on    distinction  ^- 
tween   "  ca.ses  "   and   "controversies,     431. 
Pynchon,  William,  member  of  court.  South 
Carolina-Georgia  boundary  dispute,  237. 

Randolph.  Edmund.  Virginia  delegate  to  .Xn- 
napolis    Convention.   56;    opening   address 
of,    Federal    Convention.    1.56-7;    advocate 
of'  limited  and   specified  powers.   162;  on 
victory    of    small    States    in    question    of 
equal   suffrage  in   Senate.  185-6;  in   favor 
of  a  plural  executive.  195;  member.  Com- 
mittee of   Detail.  260. 
Randolph   Plan,  authorship  of,  53.  158.  IVS, 
200.  203,  250.  261.  279;  fifteen  resolutions 
of    158-9;   pnnisiqjjs  of.   for  national  leg- 
islature.   158-9.     161.    172    .-(    i.;</..     190. 
2'=0-l      provision    of.    for   national    execu- 
tive. 158-9,  161.  194-5.  W.  2W.  250;  pro- 
vision    of.     for     national     judi.iary.     l.-'O. 
161.    250;    division    of.    into    four    Rroups. 
159:  not  l)a>ed  on   .Articles  of  Confc<Ura- 
tion    160-  terms  "  national  "  and  "  federal  " 
in.     161,    164.     202;    prescribes    a     union 
of'  free  states.   161  ;   referred  to  Commit- 
tee  of    IKt.iil.    164;   reported    from   Com- 
mittee   of    the    Whole.    176.    177;    reconv 
mitted  to   Committee  of   the   Whole   with 
PatterwH    ri.in.    177,    Patterson    plan    re- 
jected in  favor  of.  IM.  179:  ba^is  of  dis- 
cussion   in    Federal    Convention,    1/9;    ob- 
stacles in  way  of  a  Constitution  according 


to.  overcome,   190;  provision  of,  respect- 
ing coercion   of   States,  203;   in   original 
form,  not   pleasing  to  small   States,  256; 
favored  by  majority  of  Convention,  257; 
made  laws  of  Union  within  <?rant  of  power 
superior  to  laws  of  the  States,  275;  pro- 
vision  of,   for   admission   of   new   States. 
290-1;    provision    of,    for    amendment    to 
Constitution,  299,  300,  301;  provision  of, 
for  ratification  of  Constitution,  305;  pro- 
vision of,  for  a  government  fer  interim, 
321 ;  text  of  520-2 ;  text  of  report  of  Com- 
mittee  of   Whole   on,   524-5;   text   of,  as 
revised    by    Convention    and    referred    to 
Committee  of   Detail,  529-32. 
Randolph,    Peyton,    president.    First    Contr 
nental    Congress.    2i:    president.    Second 
Continental  Congress.  26. 
Ratification,    of    .Articles   of    Confederation, 
40.  50.  53.  58,  59,  210,  292,  305 ;  of  colonial 
laws,  75. 
Ratification  of  Constitution,  certain  amend- 
ments  insisted   on   by    States   before.   46; 
in   New  York,  secured  by   Hamilton,  164, 
314;  provision   for,  301;  by  special   State 
conventions,   301    ct    seq.:    not    dependent 
upon  approval  of  three-fourths  of  States, 
265;  discussion  of  mode  of.  305-8;   spirit 
of  the.  309;  by  various  States.  309  et  seq.; 
difficulties  of,  312-14;  action  of  Congress 
upon.  il2. 
Read.  George,  on  equal  suffrage  of   States, 
151-2.   173-4;   Hamilton  project   respecting 
a   consolidated    form   of    government   ap- 
proved by.    164 
Reading.  John,  member.  Massachusetts-New 
Hampshire     boundary     commission.     119 
note. 
Rebellion,    Proclamation    of,    1775,    28. 
Reconstruction  Acts.  1867.  384.  386. 
Reed.  George,  member  of  court.  Massachu- 
setts-New York  boimdary  dispute.  235. 
Reed.   Joseph,   agent,  case   of    Pennsylvania 

f   Connecticut.  232. 
Regulated   Companies,   defined.  68;   personal 
independence  of  members  of.  69,    See  The 
Russia.    The    Eastland,   and    The    Turkey 
Companies 
Reprieves,  president's  power  to  grant.  197. 
Representation,     system    of.    prescribed    by 
Constitution,    172;    under    Randolph    plan. 
173:    different    views    respecting.    173    et 
seq.;  proportional,  in  House  of   Represen- 
tatives.   179-80;    equal    in    Sena  o.    IW)   et 
seq.;    Frnnklin's   conciliatory   pr-qiosal    le- 
speciini;.  IW,  185;  by  numbers,  as  atfected 
by  slaves,  187, 
Riprcsentative    assemblies,    hou'.e    of    bur- 


iJ 


INDEX 


599 


gessci  in  Virginia,  23,  74,  83,  83  note; 
growth  of,  82  et  teq.;  bicameral  system, 
83,  84  note,  85  note,  86  note. 

Requisitions,  power  of  Congress  to  make, 
43;  provision  of  Patterson  plan  respect- 
ing, 177. 

Resolution,  The.  224  note. 

Rcspublica  V    De  l-ongcliamps,  448-9. 

Respublica  v.  Sweers,  34,  58,  468. 

Revenue,  amount  of,  to  be  raised  by  col- 
onies for  government  under  Confedera- 
tion, -12;  of  Crown  of  England,  92;  bills 
of,  must  originate  in  lower  house  of  State 
legislature,  136;  provision  of  Randolph 
plan  respecting  national,  158;  provision  for, 
Patterson   Plan.   177. 

Revolution.    See  .American  Revolution. 

Revolution,  French,  influence  of  Rousseau 
on,  35-6. 

Rex  V.  Cutbush,  346-7. 

Rhode  Island,  refused  to  acknowkledge  jur- 
isdiction of  Massachusetts  and  Plymouth. 
7;  not  a  member  of  New  England  Confed- 
eration. 7 :  did  not  send  delegates  to  Fed- 
eral Convention.  7,  58.  147.  150.  153.  175, 
176,  309-  represented  at  .Albany  Congress, 
11  ;  adoption  of  Constitution  by,  46,  153, 
309.  316,  380,  571  note;  representative  as- 
semblies in,  85  note;  charter  of,  85  note, 
103,  105,  131 ;  charter  provisions  of,  in 
force  after  Declaration  of  Independence, 
84 :  not  obliged  to  submit  colonial  laws 
to  Great  Britain  for  approval.  101  ;  Holden 
and  Crecn  petition  respecting  territory  in, 
101-9.  boundary  disputes  of,  118  19  notes, 
125.  270,  379  note.  386-7.  401-2,  405,  420; 
constitution  of,  131,  380;  colonial  gover- 
nor of,  elected  by  people,  138;  courts  of, 
elected  by  colonial  authorities,  138:  ad- 
hered to  recommendations.  Federal  Con- 
vention, 153;  independence  of,  241;  dis- 
pute respecting  constitutionality  of  govern- 
ment of,  303  note,  .WO-2;  amendments  to 
Constitution  proposed  by,  330;  ratifica- 
tion of  first  ten  amendments  by,  572 
note. 

Rhode  Island  v.  Connecticut,  118,  119  note. 

Rhode  Island  v.  Massachusetts,  118.  119 
note,  125,  270,  379  note,  386-7,  401-2,  405, 
420 

Rights     Sec  r.ill  of  Rights. 

Ritteiihoiisc.  David,  and  the  case  of  Th< 
Active.  222,  222   nate 

Robinson  r.  Campbell.  440. 

Root.  F.lilui,  instructions  of,  for  government 
of  the  Philippines.  .ViO.  4-t.?,  44,1  note  1. 

Root.  Jesse,  agent,  case  ot  Pennsylvania  v. 
Connecticut.  232. 


Rousseau,  influence  of  political  doctrines  of, 
on   Revolution,  35,  36,  36  note. 

Royal  African  Company,  a  joint-stock  com- 
pany, 68. 

Rules  and  Orders,  t'ederal  Convention.  See 
Committee  on  Rules  and  Orders. 

Rutledge,  Edward,  on  influence  of  New 
England  in  Congress,  41. 

Rutledge,  John,  seconded  election  of  Wash- 
ington as  President  of  Federal  Conven- 
tion, 149;  opposed  to  equal  suffrage  of 
States,  175;  views  of,  respecting  grant 
of  power  to  Congress  to  negative  State 
legislation,  179  note,  2u2 ;  member  com- 
promise committee,  Senate  suffrage  con- 
troversy, 185 ;  declined  position  as  member 
of  court,  case  of  Pennsylvania  i>.  Con- 
necticut, 2i2\  in  favor  of  limitation  of 
judicial  power  of  United  States  to  one 
supreme  tribunal,  252,  253 ;  chairman.  Com- 
mittee of  Detail,  260,  261 ;  modifications  of, 
to  first  draft  of  Constitution,  261 ;  changes 
made  by,  in  Wilson's  draft,  261 ;  views 
of,  respecting  tenure  of  judges,  263;  in 
favor  of  jurisdiction  of  Supreme  Court 
in  questions  of  international  obligations, 
265,  268 ;  considered  special  provision  for 
settling  disputes  between  States  unnec- 
essary, 269,  270 :  motion  of,  respecting  su- 
premacy of  laws  of  Union,  276;  opposed  to 
preparation  of  address  to  people  to  accom- 
pany Constitution,  329:  in  favor  of  separa- 
tion of  judicial  and  political  powers,  329. 

Saint  Ildefonso,  Treaty  of,  between  Spain 
and  France.  October  \,  1800,  376,  377. 

Sanborn,  In  re.  .WO-l. 

Sandys,  Sir  Edward,  drafted  second  Vir- 
ginia charter,  71 ;  drafted  third  Virgiiiia 
charter,  72. 

Scotia,  The,  447  note. 

Seeley,  Sir  John,  on  nature  of  Englishmen 
to  assemble,  22,  83:  on  English  attitude 
toward  colonies,  66. 

Senate,  creation  of,  172  et  seq.;  great  de- 
bate respecting  equality  of  States  in,  180 
et  scif  .  duties  of,  in  connection  with  pres- 
idential election,  196;  approval  of.  neces- 
sary for  conclusion  of  treaties.  198-9:  ap- 
proval of,  necessary  for  appointment  of 
public  minister:,  199.  274:  aiiplication  to, 
in  disputes  respecting  territorial  jurisdic 
tion  between  States.  271;  a  high  court 
of  impeachment.  273:  approval  of,  neces- 
sary for  appointment  of  judges  of  Su- 
preme Court,  273.  274:  Madison's  amend- 
its  to  Constitution  considered  by.  326. 
also  Legislative  Department. 


600 


INDEX 


# 


•4 

H 


Sergeant.   Jontthmn   Dickiinon,   tgcnt.   caie 

of    Pennsylvania  v.   Connecticut,  2J2. 
Seven  Year*'  War.    Set  French  and  Indian 

War 
Shaw,   Mr.   Chief  Justice,  on  mterpreUtion 

of  terms  of  common  lawr,  445-6. 
Shay's  Kcbcllioii.  1787.  .Madison  on,  50. 
Sherman.  KoKir,  memher,  drafting  commit- 
tee of  Declaration  of  Independence,  30; 
Connecticut  delegate.  Federal  Convention, 
152  remarks  on  question  of  equal  repre- 
sentat'  '   States,  180-1,  184;  views  of, 

respe«..i..8  (>ower  of  Congress  to  negative 
Stale  legislation,  201;  in  favor  of  limita- 
tion of  judicial  power  of  United  States 
to  one  supreme  tribunal.  252;  in  favor  of 
appointment  of  supreme  court  judges  by 
legislature,  255 :  opposed  to  creation  of  m- 
fcrior  tribunals  by  Congress,  259;  con- 
sidered special  provision  for  settling  suits 
between  States  unnecessary.  269;  in  favor 
of  extending  judicial  power.  271;  m  favor 
of  equality  of  Western  States,  294;  con- 
sidered popular  ratification  of  Constitu- 
tion unnecessary.  305 ;  in  lavor  of  »«?"»- 
tion  of  judicial  and  political  powers.  419. 
Shiras.  Mr.  Justice,  on  finality  of  decree  of 

Supreme   Court.  360-1 
Shirreft.    William,    member,    Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 
Siren.  The,  459-60 

SitKreaves,  John,  member  of  court,  Massa- 
chusetts New  York  bimndary  dispute.  23S  ; 
District  Judge.  North  Carolina  Circuit 
Court,  .«1.  ,.  ,       ^, 

Skeene,  William,  member,  Massachusetts- 
New  Hampshire  boundary  commission,  119 

note 

Slaves,  as  affecting  basis  of  representation 
in  legislature,  187;  three-fifths  rule  re- 
specting, 187;  riKht  to  continue  slave- 
trade,  insisted  on  by  Southern  States,  187. 
189-  provision  of  Constitution  relative  to 
importation  of,  188-90,  299-300. 

Smith  V.  .Mabama,  443,  444. 

?  '.h,  Isaac,  member  of  court,  Massachu- 
tts-Xcw  York  boundary  dispute,  235. 

Si.  ■,  INlelancthon,  opposed  to  Coiistitu- 
<n,  314 ;   finally   voted   for   Constitution, 

Smith,  Sir  Thomas,  named  in  royal  charter 
as  first  governor  of  East  India  Company, 

69.  ,    ,  A 

Socictv  of  Nations,  question  of  large  and 
small  states  in,  41 ;  union  under  Articles 
of  Cnn  federation  an  example  if  or,  47, 
membership   of  United    States   in,   recog- 


nized by  treaties,  60;  diBBculty  of  confer- 
ring upon  an  agent  the  exercise  of  large 
iovercign  powers,  99;  more  perfect  union 
under  Constitution  a  model  for,  147 ;  stand- 
ing   rules    and    orders    in    Federal    Con- 
vention a  precedent  for  future  conference* 
of    the,    '56;    provisions    for    judicial   set- 
tlement   under    Confederation    capable    of 
application  to,  213;  a  permanent  court  of 
the,  282;   political  questions  of,  may  be- 
come judicial,  424;  sovereignty,  the  great 
problem  of,  467 ;  compared  with  the  union 
of   the    United    States,  467-8;    a   possible 
solution  of  the  problems  of,  468-9. 
South  and  North,  distrust  between,  41 ;  dis- 
tinction between,  77;  colonial  development 
contrasted,  83. 
South    Carolina,   representative   government 
set  up  in,  85  note;  boundary  disputes,  118 
note,   234,  236-7;   steps  taken   by,  to  pre- 
vent anarchy  during  Revolution,  129;  ap- 
pointed  delegates   to   I'edcral    Convention, 
147 ;  instructions  to  delegates.  Federal  Con- 
vention, 152;  opposed  to  equal  suffrage  of 
States    in    Senate,    184,    185;    constitution 
of,  198  note;  charter  of,  236;  in  favor  of 
popular    ratification    of    Constitution,    305, 
308;    ratification    of    Constitution   by,   311, 
312,    571    note;    amendments    to   Constitu- 
tion proposed  by,  330;  ratification  of  first 
ten  amendments,   572  note 
South  Carolina  v.  Georgia,  236-7 
South  Carolina  v.  United  States,  335, 
South  Carolina.  The.  224  note. 
Southern    States,   and   regulations   of   com- 
merce, 188-9. 
Sovereignty,  passed  to  people  of  colonies  as 
result  of  the  Declaration  of  Independence, 
ii ;  certain  powers  of,  renounced  by  States 
under    Confederation,   42-3;    Madison    on, 
52;   of   States,  under  Articles  of  Confed- 
eration, 58;  of  States,  under  Constitution, 
161,   333-4;   problem    of,   in    establishment 
of  a  judiciary,  248-9;  not  amenable  to  suit 
without   consent,  249,  335;   of   the  people 
by  Constitution,  308;  division  of  sovereign 
powers,  334-5;    States  protected   from  at- 
tempts  of   Government   to   infringe   upon, 
359-60;  not  always  immune  from  suit,  456; 
suit  without  consent  inconsistent  with,  457; 
waiving   of,   457;    degree   of,    relinquished 
by  a  plaintiff  sovereign,  462-3,  464-5 ;  cases 
when    sovereign    becomes    subordinate    to 
law,  464 ;  the  great  problem  of  the  Society 
of  Nations,  467. 
Spaight,  Richard  Dobbs,  motion  of,  on  pro- 
cedure in   Federal   Convention,   155. 
Spain,   ceded   Florida   to  United   State*  by 


INDEX 


601 


treaty,  1819,  354;  Treaty  of,  with  France, 
1800  (Treaty  of  St.  lUlefonso),  J76-7. 

Spain  V.  Machado.  6Vr  King  of  Spain  v. 
Machado. 

Spaniards,  Jamaica,  coiiquered  from,  92,  95. 

Spefdwtll,  The.  224  note. 

Squirrel,  The,  224  note. 

States,  large  and  smalt,  and  Franklin's  plan 
of  union.  17:  claims  of  large  and  small,  in 
first  Congress  under  Confedtration.  41; 
nature  of  union  of.  under  Confederation, 
42;  equal  suffrage  of.  in  Congress  ui.der 
Confederation.  42:  sovereign  powers  sur- 
rendered by.  A2-^.  230:  jurisdict'on  of  Con- 
gress in  controversies  betweei  44-5 ;  sit- 
uation of,  in  matters  of  commci -e,  55,  166; 
coercion  of,  55.  158.  165,  178,  202,  203, 
279  <•(  seq.,  453;  Confederation  a  union  of 
sovereign.  58-9:  precedent  for  suit  of  citi- 
zens against,  102;  justice  to  small  States, 
118;  source  of  law  in  matter  of  constitu- 
tion for  union,  139-40;  question  of  equal 
suffrage  in  Federal  Convention,  148,  151, 
152,  153;  admission  of  new,  to  union,  159, 
178,  286  el  seq  ;  power  of  Congress  to 
regulate  commerce  with,  166;  renounced 
right  to  wage  war  unless  attacked,  167 ; 
militia  of,  168;  and  question  of  creation 
of  legislature,  172;  representation  and  suf- 
frage of,  in  Congress,  172  et  seq.;  views 
of  small  and  large  regarding  reprcsenta- 
tio.v.  173 ;  power  of  Congress  to  negative 
unconstitntional  legislation  of.  178.  179 
notes.  180,  201  2;  distinct  commercial  in- 
terests of.  188;  voluntary  self  denials  of, 
including  disarmament,  210;  methods  of 
settling  controversies  between,  210-11,  229 
tt  .teq.;  courts  of.  211,  213:  resolution  of 
Congress  of  March  6,  1779,  regarding  rela- 
tions of,  221  ;  as  sovereign  powers  immnne 
from  suit  without  their  consent,  248-9; 
Randolph  plan  in  interest  of  large  States, 
2.^0;  Patterson  plan  in  interest  of  small, 
250 :  large  and  small,  and  question  of  crea- 
tion of  judiciary,  255  ct  seq.:  attitude  of 
large,  regarding  admisi;ion  of  new  Slates, 
291 ;  western  boundaries  of  original  not 
clear.  291,  291  note,  292  note:  safeguarded 
by  Constitution  against  partition  or  invol- 
untary union,  294 :  unanimous  consent  of, 
not  necessary  to  amend  Constitution.  299; 
representation  of  small  States  provided 
by  Constitution  not  subject  to  amend- 
ment. 300;  judicial  powers  of.  303;  power 
of  Congress  to  recognize  governments  of, 
303  note.  380-2,  .192:  amendments  to  Con- 
stitution respecting  relations  of,  to  union, 
325 ;  powers  not  delegated  are  reserved  to. 


32";  construction  placed  on  Constitution 
by,  333;  sovereign  powers  divided  between 
States  and  United  States,  333-4:  sover- 
eignty of,  protected  from  attempts  of  gov- 
ernment to  infringe  upon,  359-60;  cannot 
be  compelled  to  appear  in  court.  359;  re- 
lation of  court  to,  369:  cannot  tax  agents 
of  government,  368,  .169,  412;  liability  of, 
to  suit,  410-12;  judicial  power  of  United 
States  extended  to  suits  between,  452-3; 
provision  of  Constitution  respecting  ju- 
dicial power  over,  453;  consent  of.  to  suit, 
454-5;  State  may  sue  a  State.  464;  union 
of,  model  for  Society  of  Nations,  467- 
8;  ratification  of  Constitution  by,  571  note; 
ratification  of  amendments  to  Constitu- 
tion by,  572  note. 

State  Constitutions.  See  Constitutions, 
State. 

State  conventions,  Randolph's  resolution  re- 
specting submission  of  amendments  to  Con- 
federation to,  158:  Constitution  ratified 
by,  ,131 :  declarations  of,  respecting  power 
of  Supreme  Court  to  declare  laws  uncon- 
stitutional, 362;  no  attempt  at  coercion 
in.  452-3:  text  of  resolution  transmitting 
Constitution  to,  571. 

Statutes,  colonial.    See  Colonial  Laws 

Stewart,  Charles,  president.  New  York- 
New  Jersey  boundary  commission,  1767, 
116. 

Story,  Mr  Justice,  on  sovereignty  of  States, 
334 ;  on  power  lodged  in  sovereign,  .183 ; 
held  Cherokee  Nation  to  be  a  nation  in 
sense  of  Constitution,  ,188;  opinion  of,  re- 
specting nature  and  extent  of  the  appel- 
late jurisdiction  of  the  United  States,  405- 
9:  "case"  defined  by.  430;  decision,  case 
of  De  Lovio  f.  Boit,  447  note ;  on  goods 
of  United  States  subject  to  contribution, 
461. 

Strong,  Mr.,  in  favor  of  separation  of  politi- 
cal and  judicial  powers,  418. 

Sturges  V.  Crowninshield.  59. 

Style.  Committee  on.  See  Committee  on 
Style. 

Suffrage,  of  States,  equal  under  Confedera- 
tion, 42.  172,  182;  resolution  of  Randolph 
plan  respecting,  158.  172:  change  in  rule 
of,  opposed  by  Delaware.  172;  in  Senate. 
172,  180  et  seq.;  in  House  of  Representa- 
tives, 179-80. 

Sullivan,  James,  agent,  Massachusetts- New 
York  boundary   dispute,  235. 

Supreme  Court,  genesis  of  authority  of,  in 
questions  of  constitutionality,  65;  prece- 
dents for  power  of.  over  legislatures,  101, 
121;    precedents    for    jurisdiction    of,    in 


602 


INDBX 


-.m, 


4 
fr 


boundary  disputei.  IM  el  teq.,  12S-6;  ei- 
Ubltiheil   under  Constitution,   166.  211-12; 
jurisdiction  of,  in   international  qucitioni, 
212,  265,  268  «•»  irq.;  Court  of  Appeals  in 
Cases   of   Capture,  immediate   predecessor 
of,  215,  225,  244;   Reports  of,  224;    tem- 
porary judicial  commissions  an  origin  of, 
229.  a  permanent  internatiuiial   judiciary, 
244,  265 ;   account  of  creation  of.  247  tt 
stq.;   problem  of   sovereignty   involved   in 
creation   of.   248-9;   difference   of    oinnion 
in  Feileral  Convention  respecting.  249 ;  two 
plans    for.    249-51 ;    iiuestion    of    appoint- 
ment  of   judges   of.  249.  257  9.   273,  274: 
draft   priipt)*als  concernim     261-3;   tenure 
of  judges.  26.)  4,  274,  finai     idicial  author- 
ity of  union.  265 ;        'otypc  of  a  court  of 
internalioTial    justice,   268   et   scii.:    vested 
with    jurisdiction    possessed    by    Congress 
under   Confederation,  271-2;   orit;ina1   and 
appellate   jurisdiction    of.   272-3,    and    im- 
peachments.  272 .   powers   of,   274,   374   et 
seq.:  jurisdiction  of,  in  cases  affecting  the 
United  States.  289;  appeal  to.  from   State 
courts.   ,?(I4 .   amendments   to   Constitution, 
subject  of   appeals   in.   i.W.   determination 
of   construction    of    Constitution    and   en- 
forcement  of    its   precepts   duty   of,   333 : 
extent  of  power  of,  defined  by  Congress, 
342;  passes  upon  constitutionality  of   fed- 
eral as  well  as  Slate  legislation,  344.  362; 
orignial  jurisdiction  of.  358.  398.  3</9.  402 
el  sf'l-.  453;  appellate  jurisdiction  of.  357. 
359.  308.  399.  402  et  seq.:  may  com|)el  in- 
dividuals but   not   States   to   appear,   359; 
finality  of   decree  of,  360;   original   juris- 
diction of,  can  not  be  enlarged  or  lessened, 
366  7:    determination    of    constitutionality 
by,   374:   powers  of,  purely   judicial,  375; 
cases  submitted  to,  involving  separation  of 
judinal    from    political    functions.    376    et 
seq;    "  sup-eme "    court    detined.    400;    es- 
tablished   by    Judiciary    Act.    1787.   402-4: 
cases   involving  extent   of    jurisdiction    of. 
404    et   se,i.:    authority    of.    showing    how- 
political    (lucstions    may    become    judicial. 
420-4 ,  functions  in  cases  only.  425 ;  States 
may  be  sued  in,  452 ;  precedent  for  a  court 
of  the  nations,  468 
Swayne.    Mr.    Justice,    on    cases    imolving 
political    department    of    government.    379 
note 
Sweden.  Treaty  of.  with  United  States,  April 

3.   1783,  60 
Sweers.    SVf  Kespublica  v.  Sweers. 

Talbnt.   Sir  rh.irles.  opinion,  respecting  leg- 
islative   power    of    Connecticut,    96,    348; 


on  international  law  and  common  law, 
448. 
Taney,  Chief  Justice,  opinion  of,  respecting 
power  of  Congress  to  recognize  State  gov- 
ernments, 303  note,  380-2,  392;  on  strictly 
judicial  power  of  United  States  Circuit 
Courts  aiul  judges,  352,  353;  on  distinc- 
tion between  judicial  and  other  powers, 
354-6;  on  nature  and  functions  of  Supreme 
Court,  357;  on  appellate  jurisdiction,  357; 
on  reason  for  creation  of  judicial  power, 
357-8;  on  original  jurisdiction  of  Supreme 
Court,  358 ;  on  exemption  of  States  from 
suit  without  consent,  359,  395 ;  on  ex- 
ercise of  judicial  power  in  sense  of  the 
Constitution,  359;  on  protection  of  sov- 
ereignty of  States,  359  60;  on  separation 
of  powers,  360;  on  coercion  of  States, 
453, 

Tappan,  .Mr  Justice,  on  interpretation  of 
terms  of  common  law,  444-5. 

Taxation,  contention  of  colonists  respecting 
money  raised  by,  IS;  land  and  poll  tax 
distinguished,  42;  power  of  Congress  to 
lay  and  collect,  166;  of  exports,  opposi- 
tion of  States  to,  188;  report  of  commit- 
tee respecting,  188;  power  of,  granted  to 
Congress,  190 

Taxation  of  Colonies  Act,  28, 

Taylor,  Colonel,  views  of,  respecting 
Kandolph  plan  combated  by  Madison, 
162. 

Temporary  Judicial  Commissions  See  Ju- 
dicial Commissions,  Temporary, 

Tennessee,  creation  and  admission  of  State 
of.  290, 

Territories,  power  of  Congress  over,  295, 

Texas  v.  White,  334-5,  370. 

Thistle,  The.  218. 

Thompson,  Charles,  signed  Declaration  of 
Independence  as  secretary  of  Congress. 
30 

Thompson.  Mr,  Justice,  held  case  of  Chero- 
kee Nation  to  be  a  case  for  executive 
department,  388. 

Tilghman,  Chief  Justice,  case  of  The  Ac- 
tive. 218. 

Todd.  Mr.  Justice  on  terms  of  law  and 
equity.   440-1 

Toqueville.  Alexis  de.  on  American  judiciar. . 
280, 

Trade,  association  to  cut  off  trade  between 
Great  Britain  and  colonies,  advocated  by 
Congress.  26;  John  Adams'  view  respect- 
ing ,\cts  of.  2l^.  178:  Act  prohibiting  Trade 
and    Intercourse.    1775,    28, 

Trade  Guilds,  origin  of  regulated  compan- 
ies, 68. 


INDIX 


603 


Trade  and  Intercoanc,  Act  prohibiting,  1775, 
28. 

Trade  and  Plantations,  Lordt  Commissioneri 
of.  Set  Lord*  Commissioners  of  Trade 
and  Plantations. 

Trading  Companies,  charters  granted  to,  64 
tl  ttq.;  development  of,  68  9;  regulated 
companies,  68;  joint-stock  companies,  68; 
East  India  Company,  68,  69-70,  71,  73;  Lon- 
don Company.  70,  71-2.  74,  75,  76,  77; 
Plymouth  Company,  70,  77-9.  See  also 
Corporations. 

Treaties,  provisions  respectrng.  Articles  of 
Confederation,  43,  44,  198  note,  248;  by 
whom  made,  43,  197-8;  certain  encroach- 
ments on  Federal  authority,  49;  supreme 
law  of  the  land,  178,  276-9.  375;  provision 
for,  South  Carolina  constitution.  198  note ; 
provision  for  making,  in  constitution,  198 
note;  States  not  to  enter  into,  212:  liable 
to  infractions  under  Articles  of  Confedera- 
tion, 248;  jurisdiction  of  Supreme  Court,  in 
questions  arising  under,  268  el  JCi/. ;  rights 
of  the  United  States,  respecting  moneys 
received  under,  433:  France  and  England 
(Treaty  of  Paris),  February  10, 1763. 14,23, 
94.  292.  347 ;  France  and  the  United  States,, 
Fehruarv  6,  1778,  35,  49,  60;  United  States 
and  Holland,  October  8,  17«2,  49,  60; 
United  States  and  Sweden,  April  3,  1783, 
60;  United  States  and  Great  Britain 
(Treaty  of  Peace),  September  3,  1783.  49, 
60.  276.  277 .  Spain  and  France  ( Trcatv  of 
St.  Ildefonso),  October  1,  1800,  376,  377; 
France  and  United  Slates  (Treaty  of 
Paris),  April  30,  1803,  377;  United  States 
and  Spain,  February  22,  1819,  354;  United 
States  and  Mexico,  July  4,  1868,  431; 
United  States  and  Cuba,  377  note. 

Trevett  v  W'eeden,  261. 

Trial  by  Jury,  right  of  colonists  to,  25, 
98 ;  views  respecting,  in  Federal  Conven- 
tion, 329;  provided  for,  in  Constitution  of 
New  Jersey,  349. 

Triquet  v.  Bath,  448. 

Turkey  Company,  The,  a  regulated  company, 
68. 

Unfinished  Portions.  See  Committee  on  Un- 
finished Portions. 

Union,  the  Mayflower  Compact.  3 ;  suggested 
by  Fundamental  Orders  of  Connecticut,  4 ; 
early  plan  for,  6;  New  England  Confed- 
eration, 6,  7;  Penn's  "  scheam,"  6,  9.  10, 
11;  Franklin's  plan  of  1754,  6,  11-14;  im- 
portance of  union  of  colonies,  as  prece- 
dent, 9  note;  Franklin's  plan  of  1775,  15- 
18;  sentiment  in  favor  of,  at  Albany  Con- 


gress, II ;  of  sovereign  States  by  Articles 
of  Confederation.  34,  58-61 ;  nature  of, 
under  Confederation    42. 

United  States,  mdcpendence  declared  by,  22; 
a  body  corporate,  34 ;  government  of  Con- 
federacy styled,  42,  58;  management  of 
general  interests  of,  41  ;  and  suits,  459  ei 
seq.;  may  be  sued  in  Court  of  Claims,  465. 

United  States  v.  Clarke,  460. 

United  Slates  v.  Fcrreira.  352,  353,  354-6. 

United  Slates  f.  Hudson  and  Goodwin,  441-2. 

United  States  v.  McRae,  461. 

United  States  v.  Texas.  465. 

United  Stales  v.  Todd.  352-3.  354. 

United  States  v.  Wagner,  462-3. 

United  States  v.  Wilder.  461. 

United  States  v.  Wong  Kim  Ark,  444. 

Van  Home's  Lessee  v.  Dorrance.  365-6. 

V'anhorn,  .Abraham,  member,  Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 

V'anhorn,  Cornelius,  member,  Massachusetts- 
New  Hampshire  boundary  commission.  119 
note. 

Vattel,  works  of,  consulted  by  framers  of 
Constitution,  439. 

Vermont,  excluded  from  Albany  plan  of 
union,  11;  constitution  of,  136,  290;  not  a 
colony  under  the  Crown.  136 ;  not  a  State 
under  .Articles  of  Confederation.  136, 
290:  boundary  ilisputes  involving  existence 
of,  238-41  :  organii-ed  as  a  State  by  settlers 
of  Green  Mountains.  239;  declared  inde- 
pendence. Zyi.  290,  292  note :  independence 
recognizeil.  241  ;  admitted  to  Union,  Feb- 
ruary 18.  1791.  571 :  ratification  of  Con- 
stitution by,  571  note:  ratified  amendments 
to  Constitution,  572  note. 

Vetoes,  executive  and  judicial,  200-2. 

Vice-President,  method  of  election  of,  196; 
may  be  removed  from  office,  197 

Virginia,  governed  directly  as  a  province  by 
the  Crown  from  !624  to  Kevolulion,  22, 
76;  house  of  burgesses  in.  23.  74.  76,  83, 
84  note:  compact  of.  with  Maryland  an 
encroachment  on  Federal  authority,  49; 
interest  of.  in  navigation  of  Chesapeake 
Bay,  55.  56,  145;  part  of,  in  .Annapolis 
Convention,  56,  145 :  appointed  delegates 
to  Federal  Convention,  57,  145 :  govern- 
ment of,  model  for  southern  colonies,  64 ; 
representative  assemblies  in.  74,  83,  84 
note:  ordinance  of  July.  1621.  creating  two 
supreme  councils  in.  74-5 :  powers  of  Vir- 
ginia Company  resumed  by  Crown,  1624, 
76;  constitution  of  State  of,  76-7.  133; 
compared  with  Massachusetts  colony,  83-4 ; 


eo4 


INOU 


boundary  conirovcriy  with  Norlli  Caro- 
lina. 118  note.  119  note:  Bill  of  Kighl*, 
US.  JM.  31  J,  J28;  initructiont  to  dclcgalM, 
Federal  Convention,  150:  part  of,  in  bring- 
ing about  Federal  Convention,  162;  op- 
poied  to  equal  suffrage  of  States.  17J ;  op- 
posed to  election  of  senators  by  Slate  legis- 
latures, 180:  opposed  to  equal  suffrage  of 
States  in  Senate,  184, 185 ;  cession  to  United 
States  of  claims  of,  to  northwest  territory, 
242;  claims  of,  to  northwest  territory, 
292,  292  no.t ;  in  favor  of  popular  ratifica- 
tion of  Constitution,  JOS,  J08:  ratification 
of  Constitution  by,  312  14,  315,  571  note; 
amendments  to  Constitution  proposed  by, 
330:  statute  of.  forbidding  sale  of  lottery 
tickets.  409;  ratification  by,  of  first  ten 
amendments.  572  note. 

Virginia  Charters.  First  charter,  1606:  pro- 
visions of.  70-1 ;  divided  British  territory 
in  America  into  two  sections.  70.  77 ;  less 
liberal  than  charter  to  East  India  Com- 
pany. 71 ;  settlements  under,  did  not 
thrive,  71.  Second  charier,  1609:  provi- 
sions of,  71-2;  greater  powers  granted  by, 
71;  company  created  a  body  politic  by.  72; 
excluded  northern  section.  77.  Third 
charter.  1912:  granted  to  London  Com- 
pany, 72-4.  79;  provisions  of,  72-4;  added 
powers  granted  by.  73. 

Virginia  Company.    Set  London  Company. 

Virginia  v   West  Virginia.  102.  125-6. 

Virginian  Plan.    See  Randolph  Plan. 

Vischer.  Nicholas  John,  map  of  New  Jersey 
compiled  by,  116. 

Waite,  Mr.  Chief  Justice,  on  concurrent 
power  of  Federal  and  State  Courts,  417  18 

War,  to  he  declared  by  Congress.  43.  167; 
to  be  carried  on  by  United  States,  not  by 
any  one  State.  167.  210.  212. 

Washington.  George,  in  f'rerch  and  Indian 
War.  14?  commander-in-chief  of  Conti- 
nental armies.  27.  27  note.  28.  29.  129:  on 
excellence  of  Articles  of  Confederation, 
46,  4^1  note ;  head  of  Virginia  delegation 
to  Federal  Couention,  147:  president. 
Federal  Convention,  148-9:  on  aim  of  Fed- 
eral Convention,  161 :  first  president,  167, 
312.  322;  refused  third  term  as  president. 
195 ;  urged  establishment  of  prize  court  by 
Congress,  216-18;  urged  adoption  of  Con- 
stitution, 311,  313;  on  general  view  in  Fed- 
eral Convention  respecting  a  bill  of  rights, 
329;  on  difficulties  overcome  in  forming 
union  under  Constitution,  332. 

Washington,  Mr.  Justice,  case  of  The  Active, 
222  note. 


Weafft.  Sir  Clement,  on  Icgiilatlve  power 

in  English  colonies,  95,  96. 
Weights  and  measures,  standard  of,  fixad  by 

Congress,  43,  168. 
Well*.    John,    member,    Massachusetts- New 
Hampshire  boundary  commission,  118  note 
Wcntworth,  Governor,  grants  of,  under  scat 

of  New  ffampshire,  238. 
West  Jersey.    See  New  Jersey. 
West,  Kichard,  on  English  common  law  in 

relation  to  colonies,  97. 
Whipple,  William,  member  of  court,  Penn- 
sylvania V.  Connecticut,  ii2,  233. 
White,  Chief  Justice,  on   suit  of  a  citizen 
against  a  State,  102,  125-6;  opinion  of,  in- 
volving distinction   between  political  and 
judicial  questions,  390-3. 
White  County  Commissioner*  v.  Gwin,  399- 

400. 
Whole,  Committee  of  the.    See  Committee 

of  the  Whole. 
William   III,   New  York-Connecticut  agree- 
ment of  1683,  confirmed  by,  114. 
Williams    t>     Suffolk    Insurance    Company, 

378-9,  379  note,  382. 
Williams,     Roger,    testimony    of,    caic    of 

Holden  and  Green,  102,  105,  106. 
Williamson,  Hugh,  favored  compromise.  Sen- 
ate  suffrage   controversy,   184;   views   of, 
respecting  provision   for  settling  disputes 
between  States,  269. 
Wilson,  F.x  fa"'.  444. 

Wilson,  James,  nominated  William  Temple 
Franklin  for  secretary.  Federal  Conven- 
tion, 149;  on  representation  of  New 
Hampshire  at  Federal  Convention,  175 : 
views  of,  respecting  question  of  grant  of 
power  to  Congress  to  negative  State  legis- 
lation, 178  note,  179  note.  180.  200-1 ;  op- 
posed to  equality  of  suffrage  in  Senate, 
182;  in  favor  of  a  check  upon  legislative 
department,  201 ;  agent,  case  of  Pennsyl- 
vania V.  Connecticut,  233:  opposed  to 
limitation  of  judicial  power  of  United 
States.  252;  favored  establishment  of  in- 
ferior tribunals  by  national  legislature, 
253;  motion  of,  leaving  appointment  of 
judges  to  the  executive  branch.  258:  mem- 
ber. Committee  of  Detail,  260;  prepared, 
enlarged  and  revised  draft  of  Constitution, 
261 ;  recommended  judicial  method  for  set- 
tling disputes  between  States,  270:  Justice, 
Circuit  Court  for  District  of  Pennsylvania, 
350:  opinion  of,  respecting  unconstitution- 
ality of  an  act  of  Congress,  365 ;  proposed 
investing  judiciary  with  political  functions, 
418 :  on  extent  of  judicial  power  of  United 
States.  418,  447. 


INDEX 


605 


Winthrop  v.  LcchnMrc,  96,  97,  lOt,  119-21, 

J48. 
Winlhrop,  John,  and  two  hoiiict  of  reprc- 

srnlativei  in  Maiiachu^rlK,  R,l. 
Wiscnntin   v.    Pelican    Insurance    Company, 

4J1. 
Wood,  Vicf-Chanccllor   Page,  on   status  of 

United    Statci    tuing    in    Engli»h    court, 

462  J. 
VVythc,  Cirnrgt,  declintd  p<nition  an  judge  in 

Court   of    Appeals    in    Cases    of    Capture, 

223:  member  of  court,  ,^lassarhusetts-^'ew 

York  boundary  dispute.  2J5 ,   declared  act 

of     Virginia    legislature    unconstitutional, 

36J 

Yates,  Mr.  Justice,  on  by-laws  of  a  corpora- 
tion inconiiitent  with  charter,  J47. 


Yatet,  Robert,  on  Pinckney  plan  of  federal 
government,  16J,  251 ;  member,  compro- 
mise committee.  Senate  suffrage  contro- 
versy, 185 :  on  jurisdiction  of  national 
judiciary,  254-5. 

Yick  VVii  ('.  Hopkins,  140. 

York,  James  Duke  of,  grant  of  Charter  II  to, 
116.  117,  122.  I2J:  Penn's  purchase  of  quit 
claim  to  Delaware  from.  122;  claim  of, 
to  Crown  of  Kngland,  .144,  348. 

Yorke,  Sir  Philip,  on  legislative  power  In 
English  colonies.  95-6;  appeared  fur  Win- 
throp. case  Lechmere  v.  Winthrop,  120, 
348 :  opinion  of.  case  Penn  v.  Lord  Balti- 
more, 124 ;  considered  iKjiindary  dispute  in- 
volving a  contract  between  the  parties  ap- 
propriate for  exercise  of  judicial  power, 
387. 


